[Title 16 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2004 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    16


          Parts 0 to 999

                         Revised as of January 1, 2004

Commercial Practices





          Containing a codification of documents of general 
          applicability and future effect
          As of January 1, 2004
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register

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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2004



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 16:
          Chapter I--Federal Trade Commission                        3
  Finding Aids:
      Material Approved for Incorporation by Reference........     613
      Table of CFR Titles and Chapters........................     615
      Alphabetical List of Agencies Appearing in the CFR......     633
      List of CFR Sections Affected...........................     643

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  16 CFR 0.1 refers 
                       to title 16, part 0, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16Las of January 1..........
Title 17 through Title 27as of April 1............
Title 28 through Title 41as of July 1.............
Title 42 through Title 50as of October 1..........

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2004), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Public Papers, 
Weekly Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format at www.gpoaccess.gov/nara 
(``GPO Access''). For more information, contact Electronic Information 
Dissemination Services, U.S. Government Printing Office. Phone 202-512-
1530, or 888-293-6498 (toll-free). E-mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

January 1, 2004.

[[Page ix]]



                               THIS TITLE

    Title 16--Commercial Practices is composed of two volumes. The first 
volume contains parts 0-999 and comprises chapter I--Federal Trade 
Commission. The second volume containing part 1000 to end comprises 
chapter II--Consumer Product Safety Commission. The contents of these 
volumes represent all current regulations codified under this title of 
the CFR as of January 1, 2004.

[[Page x]]




[[Page 1]]



                     TITLE 16--COMMERCIAL PRACTICES




                   (This book contains parts 0 to 999)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Federal Trade Commission.........................           0

[[Page 3]]



                   CHAPTER I--FEDERAL TRADE COMMISSION




  --------------------------------------------------------------------

      SUBCHAPTER A--ORGANIZATION, PROCEDURES AND RULES OF PRACTICE
Part                                                                Page
0               Organization................................           7
1               General procedures..........................          11
2               Nonadjudicative procedures..................          32
3               Rules of practice for adjudicative 
                    proceedings.............................          46
4               Miscellaneous rules.........................          85
5               Standards of conduct........................         115
6               Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Federal 
                    Trade Commission........................         119
14              Administrative interpretations, general 
                    policy statements, and enforcement 
                    policy statements.......................         126
16              Advisory committee management...............         129
              SUBCHAPTER B--GUIDES AND TRADE PRACTICE RULES
17              Application of guides in preventing unlawful 
                    practices [Note]........................         136
18              Guides for the nursery industry.............         136
20              Guides for the rebuilt, reconditioned and 
                    other used automobile parts industry....         140
23              Guides for the jewelry, precious metals, and 
                    pewter industries.......................         141
24              Guides for select leather and imitation 
                    leather products........................         153
25-227          [Reserved]

228             Tire advertising and labeling guides........         156
233             Guides against deceptive pricing............         165
238             Guides against bait advertising.............         169
239             Guides for the advertising of warranties and 
                    guarantees..............................         170
240             Guides for advertising allowances and other 
                    merchandising payments and services.....         172
251             Guide concerning use of the word ``free'' 
                    and similar representations.............         178
254             Guides for private vocational and distance 
                    education schools.......................         180

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255             Guides concerning use of endorsements and 
                    testimonials in advertising.............         183
259             Guide concerning fuel economy advertising 
                    for new automobiles.....................         188
260             Guides for the use of environmental 
                    marketing claims........................         190
        SUBCHAPTER C--REGULATIONS UNDER SPECIFIC ACTS OF CONGRESS
300             Rules and regulations under the Wool 
                    Products Labeling Act of 1939...........         201
301             Rules and regulations under Fur Products 
                    Labeling Act............................         213
303             Rules and regulations under the Textile 
                    Fiber Products Identification Act.......         228
304             Rules and regulations under the Hobby 
                    Protection Act..........................         251
305             Rule concerning disclosures regarding energy 
                    consumption and water use of certain 
                    home appliances and other products 
                    required under the Energy Policy and 
                    Conservation Act (``Appliance Labeling 
                    Rule'').................................         252
306             Automotive fuel ratings, certification and 
                    posting.................................         327
307             Regulations under the Comprehensive 
                    Smokeless Tobacco Health Education Act 
                    of 1986.................................         333
308             Trade regulation rule pursuant to the 
                    Telephone Disclosure and Dispute 
                    Resolution Act of 1992..................         346
309             Labeling requirements for alternative fuels 
                    and alternative fueled vehicles.........         357
310             Telemarketing sales rule....................         374
311             Test procedures and labeling standards for 
                    recycled oil............................         384
312             Children's online privacy protection rule...         386
313             Privacy of consumer financial information...         393
314             Standards for safeguarding customer 
                    information.............................         413
                  SUBCHAPTER D--TRADE REGULATION RULES
408             Unfair or deceptive advertising and labeling 
                    of cigarettes in relation to the health 
                    hazards of smoking [Note]...............         415
410             Deceptive advertising as to sizes of 
                    viewable pictures shown by television 
                    receiving sets..........................         415
423             Care labeling of textile wearing apparel and 
                    certain piece goods as amended..........         415
424             Retail food store advertising and marketing 
                    practices...............................         421
425             Use of prenotification negative option plans         422

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429             Rule concerning cooling-off period for sales 
                    made at homes or at certain other 
                    locations...............................         424
432             Power output claims for amplifiers utilized 
                    in home entertainment products..........         427
433             Preservation of consumers' claims and 
                    defenses................................         429
435             Mail or telephone order merchandise.........         430
436             Disclosure requirements and prohibitions 
                    concerning franchising and business 
                    opportunity ventures....................         435
444             Credit practices............................         444
453             Funeral industry practices..................         448
455             Used motor vehicle trade regulation rule....         455
456             Ophthalmic practice rules...................         463
460             Labeling and advertising of home insulation.         463
    SUBCHAPTER E--RULES, REGULATIONS, STATEMENT OF GENERAL POLICY OR 
 INTERPRETATION AND EXEMPTIONS UNDER THE FAIR PACKAGING AND LABELING ACT
500             Regulations under section 4 of the Fair 
                    Packaging and Labeling Act..............         472
501             Exemptions from requirements and 
                    prohibitions under part 500.............         485
502             Regulations under section 5(c) of the Fair 
                    Packaging and Labeling Act..............         486
503             Statements of general policy or 
                    interpretation..........................         490
SUBCHAPTER F--STATEMENTS OF GENERAL POLICY OR INTERPRETATIONS UNDER THE 
                        FAIR CREDIT REPORTING ACT
600             Statements of general policy or 
                    interpretations.........................         494
601             Summary of consumer rights, notice of user 
                    responsibilities, and notice of 
                    furnisher responsibilities under the 
                    Fair Credit Reporting Act...............         521
602             Fair credit reporting.......................         531
 SUBCHAPTER G--RULES, REGULATIONS, STATEMENTS AND INTERPRETATIONS UNDER 
                     THE MAGNUSON-MOSS WARRANTY ACT
700             Interpretations of Magnuson-Moss Warranty 
                    Act.....................................         532
701             Disclosure of written consumer product 
                    warranty terms and conditions...........         537
702             Pre-sale availability of written warranty 
                    terms...................................         539
703             Informal dispute settlement procedures......         541
 SUBCHAPTER H--RULES, REGULATIONS, STATEMENTS AND INTERPRETATIONS UNDER 
        THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976
801             Coverage rules..............................         548
802             Exemption rules.............................         565

[[Page 6]]

803             Transmittal rules...........................         581
            SUBCHAPTER I--FAIR DEBT COLLECTION PRACTICES ACT
901             Procedures for State application for 
                    exemption from the provisions of the Act         607
902-999         [Reserved]

Cross References: Animal and Plant Health Inspection Service, Department 
  of Agriculture: 9 CFR Chapter I. Commodity Futures Trading Commission: 
  17 CFR Chapter I. Consumer Product Safety Commission: 16 CFR Chapter 
  II. Securities and Exchange Commission: 17 CFR Chapter II.

Supplementary Publications: Federal Trade Commission decisions, Volumes 
  1-90 Index digest of volumes 1, 2, and 3 of decisions of the Federal 
  Trade Commission with annotation of Federal cases. Mar. 16, 1915-June 
  30, 1921. Statutes and decisions pertaining to the Federal Trade 
  Commission. 1914-1929, 1930-1938, 1939-1943, 1944-1948, 1949-1955, 
  1956-1960, 1961-1965, 1966-1970, 1971-1975, 1976, 1977.

[[Page 7]]



       SUBCHAPTER A_ORGANIZATION, PROCEDURES AND RULES OF PRACTICE





PART 0_ORGANIZATION--Table of Contents




Sec.
0.1 The Commission.
0.2 Official address.
0.3 Hours.
0.4 Laws administered.
0.5 Laws authorizing monetary claims.
0.6 [Reserved]
0.7 Delegation of functions.
0.8 The Chairman.
0.9 Organization structure.
0.10 Office of the Executive Director.
0.11 Office of the General Counsel.
0.12 Office of the Secretary.
0.13 Office of the Inspector General.
0.14 Office of Administrative Law Judges.
0.15 [Reserved]
0.16 Bureau of Competition.
0.17 Bureau of Consumer Protection.
0.18 Bureau of Economics.
0.19 The Regional Offices.

    Authority: 5 U.S.C. 552(a)(1); 15 U.S.C. 46(g).

    Source: 41 FR 54483, Dec. 14, 1976, unless otherwise noted.



Sec.  0.1  The Commission.

    The Federal Trade Commission is an independent administrative agency 
which was organized in 1915 pursuant to the Federal Trade Commission Act 
of 1914 (38 Stat. 717, as amended; 15 U.S.C. 41-58). It is responsible 
for the administration of a variety of statutes which, in general, are 
designed to promote competition and to protect the public from unfair 
and deceptive acts and practices in the advertising and marketing of 
goods and services. It is composed of five members appointed by the 
President and confirmed by the Senate for terms of seven years.



Sec.  0.2  Official address.

    The principal office of the Commission is at Washington, DC. All 
communications to the Commission should be addressed to the Federal 
Trade Commission, 600 Pennsylvania Avenue, NW, Washington, DC 20580, 
unless otherwise specifically directed. The Commission's Web site 
address is www.ftc.gov.

[63 FR 71582, Dec. 29, 1998, as amended at 65 FR 78408, Dec. 15, 2000]



Sec.  0.3  Hours.

    Principal and field offices are open on each business day from 8:30 
a.m. to 5 p.m.



Sec.  0.4  Laws administered.

    The Commission exercises enforcement and administrative authority 
under the Federal Trade Commission Act (15 U.S.C. 41-58), Clayton Act 
(15 U.S.C. 12-27), Robinson-Patman Act (15 U.S.C. 13-13b, 21a), Webb-
Pomerene (Export Trade) Act (15 U.S.C. 61-66), Packers and Stockyards 
Act (7 U.S.C. 181-229), Wool Products Labeling Act of 1939 (15 U.S.C. 
68-68j), Lanham Trade-Mark Act (15 U.S.C. 1064), Fur Products Labeling 
Act (15 U.S.C. 69-69j), Textile Fiber Products Identification Act (15 
U.S.C. 70-70k), Federal Cigarette Labeling and Advertising Act (15 
U.S.C. 1331-1340), Fair Packaging and Labeling Act (15 U.S.C. 1451-
1461), Truth in Lending Act (15 U.S.C. 1601-1667f), Fair Credit 
Reporting Act (15 U.S.C. 1681-1681u), Fair Credit Billing Act (15 U.S.C. 
1666-1666j), Equal Credit Opportunity Act (15 U.S.C. 1691-1691f), Fair 
Debt Collection Practices Act (15 U.S.C. 1692-1692o), Electronic Fund 
Transfer Act (15 U.S.C. 1693-1693r), Hobby Protection Act (15 U.S.C. 
2101-2106), Magnuson-Moss Warranty--Federal Trade Commission Improvement 
Act (15 U.S.C. 2301-2312, 45-58), Energy Policy and Conservation Act (42 
U.S.C. 6201-6422, 15 U.S.C. 2008), Hart-Scott-Rodino Antitrust 
Improvements Act of 1976 (15 U.S.C. 18a), Petroleum Marketing Practices 
Act (15 U.S.C. 2801-2841), Comprehensive Smokeless Tobacco Health 
Education Act of 1986 (15 U.S.C. 4401-4408), Telephone Disclosure and 
Dispute Resolution Act of 1992 (15 U.S.C. 5701-5724), Telemarketing and 
Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6101-6108), 
International Antitrust Enforcement Assistance Act of 1994 (15 U.S.C. 
46, 57b-1, 1311-1312, 6201 & note, 6202-6212), Credit Repair 
Organizations Act (15 U.S.C. 1679-1679j), Children's Online Privacy 
Protection Act (15 U.S.C. 6501-6506), Identity Theft Assumption and 
Deterrence Act of 1998 (18

[[Page 8]]

U.S.C. 1028 note), Gramm-Leach-Bliley Act (15 U.S.C. 6801-6809), and 
other Federal statutes.

[65 FR 78408, Dec. 15, 2000]



Sec.  0.5  Laws authorizing monetary claims.

    The Commission is authorized to entertain monetary claims against it 
under three statutes. The Federal Tort Claims Act (28 U.S.C. 2671-2680) 
provides that the United States will be liable for injury or loss of 
property or personal injury or death caused by the negligent or wrongful 
acts or omissions of its employees acting within the scope of their 
employment or office. The Military Personnel and Civilian Employees 
Claims Act of 1964 (31 U.S.C. 3701, 3721) authorizes the Commission to 
compensate employees' claims for damage to or loss of personal property 
incident to their service. The Equal Access to Justice Act (5 U.S.C. 504 
and 28 U.S.C. 2412) provides that an eligible prevailing party other 
than the United States will be awarded fees and expenses incurred in 
connection with any adversary adjudicative and court proceeding, unless 
the adjudicative officer finds that the agency was substantially 
justified or that special circumstances make an award unjust. In 
addition, eligible parties, including certain small businesses, will be 
awarded fees and expenses incurred in defending against an agency demand 
that is substantially in excess of the final decision of the 
adjudicative officer and is unreasonable when compared with such 
decision under the facts and circumstances of the case, unless the 
adjudicative officer finds that the party has committed a willful 
violation of law or otherwise acted in bad faith, or special 
circumstances make an award unjust. Questions may be addressed to the 
Office of the General Counsel, (202) 326-2462.

[63 FR 36340, July 6, 1998]



Sec.  0.6  [Reserved]



Sec.  0.7  Delegation of functions.

    The Commission, under the authority provided by Reorganization Plan 
No. 4 of 1961, may delegate, by published order or rule, certain of its 
functions to a division of the Commission, an individual Commissioner, 
an administrative law judge, or an employee or employee board, and 
retains a discretionary right to review such delegated action upon its 
own initiative or upon petition of a party to or an intervenor in such 
action.

[65 FR 78408, Dec. 15, 2000]



Sec.  0.8  The Chairman.

    The Chairman of the Commission is designated by the President, and, 
subject to the general policies of the Commission, is the executive and 
administrative head of the agency. He presides at meetings of and 
hearings before the Commission and participates with other Commissioners 
in all Commission decisions. Attached to the Office of the Chairman, and 
reporting directly to him, and through him to the Commission, are the 
following staff units:
    (a) The Office of Public Affairs, which furnishes information 
concerning Commission activities to news media and the public; and
    (b) the Office of Congressional Relations, which coordinates all 
liaison activities with Congress.

[50 FR 53303, Dec. 31, 1985]



Sec.  0.9  Organization structure.

    The Federal Trade Commission comprises the following principal 
units: Office of the Executive Director; Office of the General Counsel; 
Office of the Secretary; Office of the Inspector General; Office of 
Administrative Law Judges; Bureau of Competition; Bureau of Consumer 
Protection; Bureau of Economics; and the Regional Offices.

[65 FR 78408, Dec. 15, 2000]



Sec.  0.10  Office of the Executive Director.

    The Executive Director, under the direction of the Chairman, is the 
chief operating official who develops and implements management and 
administrative policies, programs and directives for the Commission. The 
Executive Director works closely with the Bureaus on strategic planning 
and assessing the management and resource implications of any proposed 
action. In addition, the Executive Director manages the Commission's 
facilities and administrative

[[Page 9]]

services, financial management, information technology, and human 
resources.

[65 FR 78408, Dec. 15, 2000]



Sec.  0.11  Office of the General Counsel.

    The General Counsel is the Commission's chief law officer and 
adviser, who renders necessary legal services to the Commission, 
represents the Commission in the Federal and State courts, advises the 
Commission and other agency officials and staff with respect to 
questions of law and policy, including advice with respect to 
legislative matters and ethics, and responds to requests and appeals 
filed under the Freedom of Information and Privacy Acts and to intra- 
and intergovernmental access requests.

[65 FR 78408, Dec. 15, 2000]



Sec.  0.12  Office of the Secretary.

    The Secretary is responsible for the minutes of Commission meetings 
and is the legal custodian of the Commission's seal, property, papers, 
and records, including legal and public records. The Secretary, or in 
the Secretary's absence an Acting Secretary designated by the 
Commission, signs Commission orders and official correspondence. In 
addition, the Secretary is responsible for the publication of all 
Commission actions that appear in the Federal Register and for the 
publication of Federal Trade Commission Decisions.

[65 FR 78408, Dec. 15, 2000]



Sec.  0.13  Office of the Inspector General.

    The Office of Inspector General (OIG) was established within the 
Federal Trade Commission in 1989 as required by the Inspector General 
Act Amendments of 1988 (5 U.S.C. app. 3). The OIG promotes the economy, 
efficiency and effectiveness of FTC programs and operations. To this 
end, the OIG independently conducts audits and investigations to find 
and prevent fraud, waste, and abuse within the agency.

[65 FR 78408, Dec. 15, 2000]



Sec.  0.14  Office of Administrative Law Judges.

    Administrative law judges are officials to whom the Commission, in 
accordance with law, delegates the initial performance of statutory 
fact-finding functions and initial rulings on conclusions of law, to be 
exercised in conformity with Commission decisions and policy directives 
and with its Rules of Practice. The administrative law judges also serve 
as presiding officers assigned to conduct rulemaking proceedings under 
section 18(a)(1)(B) of the Federal Trade Commission Act as amended and 
other rulemaking proceedings as directed. The Chief Administrative Law 
Judge also serves as the Chief Presiding Officer. Administrative law 
judges are appointed under the authority and subject to the prior 
approval of the Office of Personnel Management.

[54 FR 19885, May 9, 1989, as amended at 65 FR 78409, Dec. 15, 2000]



Sec.  0.15  [Reserved]



Sec.  0.16  Bureau of Competition.

    The Bureau is responsible for enforcing Federal antitrust and trade 
regulation laws under section 5 of the Federal Trade Commission Act, the 
Clayton Act, and a number of other special statutes that the Commission 
is charged with enforcing. The Bureau's work aims to preserve the free 
market system and assure the unfettered operation of the forces of 
supply and demand. Its activities seek to ensure price competition, 
quality products and services and efficient operation of the national 
economy. The Bureau carries out its responsibilities by investigating 
alleged law violations, and recommending to the Commission such further 
action as may be appropriate. Such action may include injunctive and 
other equitable relief in Federal district court, complaint and 
litigation before the agency's administrative law judges, formal 
nonadjudicative settlement of complaints, trade regulation rules, or 
reports. The Bureau also conducts compliance investigations and 
initiates proceedings for civil penalties

[[Page 10]]

to assure compliance with final Commission orders dealing with 
competition and trade restraint matters. The Bureau's activities also 
include business and consumer education and staff advice on competition 
laws and compliance, and liaison functions with respect to foreign 
antitrust and competition law enforcement agencies and organizations, 
including requests for international enforcement assistance.

[65 FR 78409, Dec. 15, 2000]



Sec.  0.17  Bureau of Consumer Protection.

    The Bureau investigates unfair or deceptive acts or practices under 
section 5 of the Federal Trade Commission Act as well as potential 
violations of numerous special statutes which the Commission is charged 
with enforcing. It prosecutes before the agency's administrative law 
judges alleged violations of law after issuance of a complaint by the 
Commission or obtains through negotiation consented-to orders, which 
must be accepted and issued by the Commission. In consultation with the 
General Counsel, the Bureau may also seek injunctive or other equitable 
relief under section 13(b) of the Federal Trade Commission Act. The 
Bureau participates in trade regulation rulemaking proceedings under 
section 18(a)(1)(B) of the Federal Trade Commission Act and other 
rulemaking proceedings under statutory authority. It investigates 
compliance with final orders and trade regulation rules and seeks civil 
penalties or consumer redress for their violation, as well as injunctive 
and other equitable relief under section 13(b) of the Act. In addition, 
the Bureau seeks to educate both consumers and the business community 
about the laws it enforces, and to assist and cooperate with other 
state, local, foreign, and international agencies and organizations in 
consumer protection enforcement and regulatory matters. The Bureau also 
maintains the agency's public reference facilities, where the public may 
inspect and copy a current index of opinions, orders, statements of 
policy and interpretations, staff manuals and instructions that affect 
any member of the public, and other public records of the Commission.

[65 FR 78409, Dec. 15, 2000]



Sec.  0.18  Bureau of Economics.

    The bureau aids and advises the Commission concerning the economic 
aspects of all of its functions, and is responsible for the preparation 
of various economic reports and surveys. The bureau provides economic 
and statistical assistance to the enforcement bureaus in the 
investigation and trial of cases.

[41 FR 54483, Dec. 14, 1976. Redesignated at 45 FR 36341, May 29, 1980, 
and amended at 50 FR 53303, Dec. 31, 1985]



Sec.  0.19  The Regional Offices.

    (a) These offices are investigatory arms of the Commission, and have 
responsibility for investigational, trial, compliance, and consumer 
educational activities as delegated by the Commission. They are under 
the general supervision of the Office of the Executive Director, and 
clear their activities through the appropriate operating Bureaus.
    (b) The names, geographic areas of responsibility, and addresses of 
the respective regional offices are as follows:
    (1) Northeast Region (located in New York City, New York), covering 
Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, 
Rhode Island, Vermont, and Puerto Rico. Federal Trade Commission, One 
Bowling Green, Suite 318, New York, New York 10004.
    (2) Southeast Region (located in Atlanta, Georgia), covering 
Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, 
and Tennessee. Federal Trade Commission, Suite 5M35, Midrise Building, 
60 Forsyth Street, SW., Atlanta, Georgia 30303.
    (3) East Central Region (located in Cleveland, Ohio), covering 
Delaware, District of Columbia, Maryland, Michigan, Ohio, Pennsylvania, 
Virginia, and West Virginia. Federal Trade Commission, Eaton Center, 
Suite 200, 1111 Superior Avenue, Cleveland, Ohio 44114.

[[Page 11]]

    (4) Midwest Region (located in Chicago, Illinois), covering 
Illinois, Indiana, Iowa, Kansas, Kentucky, Minnesota, Missouri, 
Nebraska, North Dakota, South Dakota, and Wisconsin. Federal Trade 
Commission, 55 East Monroe Street, Suite 1860, Chicago, Illinois 60603-
5701.
    (5) Southwest Region (located in Dallas, Texas), covering Arkansas, 
Louisiana, New Mexico, Oklahoma, and Texas. Federal Trade Commission, 
1999 Bryan Street, Suite 2150, Dallas, Texas 75201.
    (6) Northwest Region (located in Seattle, Washington), covering 
Alaska, Idaho, Montana, Oregon, Washington, and Wyoming. Federal Trade 
Commission, 915 Second Avenue, Suite 2896, Seattle, Washington 98174.
    (7) Western Region (located in San Francisco and Los Angeles, 
California), covering Arizona, California, Colorado, Hawaii, Nevada, and 
Utah.
    (i) San Francisco Office: Federal Trade Commission, 901 Market 
Street, Suite 570, San Francisco, California 94103.
    (ii) Los Angeles Office: Federal Trade Commission, 10877 Wilshire 
Boulevard, Suite 700, Los Angeles, California 90024.
    (c) Each of the regional offices is supervised by a Regional 
Director, who is available for conferences with attorneys, consumers, 
and other members of the public on matters relating to the Commission's 
activities.

[41 FR 54483, Dec. 14, 1976, as amended at 42 FR 27218, May 27, 1977; 43 
FR 754, Jan. 4, 1978; 43 FR 6579, Feb. 15, 1978. Redesignated at 45 FR 
36341, May 29, 1980, and amended at 50 FR 53303, Dec. 31, 1985; 63 FR 
71582, Dec. 29, 1998; 64 FR 71284, Dec. 21, 1999; 65 FR 78409, Dec. 15, 
2000]



PART 1_GENERAL PROCEDURES--Table of Contents




                       Subpart A_Industry Guidance

                            Advisory Opinions

Sec.
1.1 Policy.
1.2 Procedure.
1.3 Advice.
1.4 Public disclosure.

                             Industry Guides

1.5 Purpose.
1.6 How promulgated.

 Subpart B_Rules and Rulemaking Under Section 18(a)(1)(B) of the FTC Act

1.7 Scope of rules in this subpart.
1.8 Nature, authority and use of trade regulation rules.
1.9 Petitions to commence trade regulation rule proceedings.
1.10 Advance notice of proposed rulemaking.
1.11 Commencement of a rulemaking proceeding.
1.12 Final notice.
1.13 Rulemaking proceeding.
1.14 Promulgation.
1.15 Amendment or repeal of a rule.
1.16 Petition for exemption from trade regulation rule.
1.17 [Reserved]
1.18 Rulemaking record.
1.19 Modification of a rule by the Commission at the time of judicial 
          review.
1.20 Alternative procedures.

     Subpart C_Rules Promulgated Under Authority Other Than Section 
                       18(a)(1)(B) of the FTC Act

1.21 Scope of the rules in this subpart.
1.22 Rulemaking.
1.23 Quantity limit rules.
1.24 Rules applicable to wool, fur, and textile fiber products and rules 
          promulgated under the Fair Packaging and Labeling Act.
1.25 Initiation of proceedings--petitions.
1.26 Procedure.

Subpart D [Reserved]

                   Subpart E_Export Trade Associations

1.41 Limited antitrust exemption.
1.42 Notice to Commission.
1.43 Recommendations.

               Subpart F_Trademark Cancellation Procedure

1.51 Applications.

            Subpart G_Injunctive and Condemnation Proceedings

1.61 Injunctions.
1.62 Ancillary court orders pending review.
1.63 Injunctions: Wool, fur, and textile cases.
1.64 Condemnation proceedings.

        Subpart H_Administration of the Fair Credit Reporting Act

1.71 Administration.
1.72 Examination, counseling and staff advice.

[[Page 12]]

1.73 Interpretations.

 Subpart I_Procedures for Implementation of the National Environmental 
                           Policy Act of 1969

1.81 Authority and incorporation of CEQ Regulations.
1.82 Declaration of policy.
1.83 Whether to commence the process for an environmental impact 
          statement.
1.84 Draft environmental impact statements: Availability and comment.
1.85 Final environmental impact statements.
1.86 Supplemental statements.
1.87 NEPA and agency decisionmaking.
1.88 Implementing procedures.
1.89 Effect on prior actions.

         Subpart J_Economic Surveys, Investigations, and Reports

1.91 Authority and purpose.

      Subpart K_Penalties for Violation of Appliance Labeling Rules

1.92 Scope.
1.93 Notice of proposed penalty.
1.94 Commission proceeding to assess civil penalty.
1.95 Procedures upon election.
1.96 Compromise of penalty.
1.97 Amount of penalty.

 Subpart L_Civil Penalty Adjustments Under the Federal Civil Penalties 
  Inflation Adjustment Act of 1990, as Amended by the Debt Collection 
                         Improvement Act of 1996

1.98 Adjustment of civil monetary penalty amounts.

 Subpart M_Submissions Under the Small Business Regulatory Enforcement 
                              Fairness Act

1.99 Submission of rules, guides, interpretations, and policy statements 
          to Congress and the Comptroller General.

    Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46), unless otherwise 
noted.

    Source: 32 FR 8444, June 13, 1967, unless otherwise noted.



                       Subpart A_Industry Guidance

                            Advisory Opinions



Sec.  1.1  Policy.

    (a) Any person, partnership, or corporation may request advice from 
the Commission with respect to a course of action which the requesting 
party proposes to pursue. The Commission will consider such requests for 
advice and inform the requesting party of the Commission's views, where 
practicable, under the following circumstances.
    (1) The matter involves a substantial or novel question of fact or 
law and there is no clear Commission or court precedent; or
    (2) The subject matter of the request and consequent publication of 
Commission advice is of significant public interest.
    (b) The Commission has authorized its staff to consider all requests 
for advice and to render advice, where practicable, in those 
circumstances in which a Commission opinion would not be warranted. 
Hypothetical questions will not be answered, and a request for advice 
will ordinarily be considered inappropriate where:
    (1) The same or substantially the same course of action is under 
investigation or is or has been the subject of a current proceeding 
involving the Commission or another governmental agency, or
    (2) An informed opinion cannot be made or could be made only after 
extensive investigation, clinical study, testing, or collateral inquiry.

[44 FR 21624, Apr. 11, 1979; 44 FR 23515, Apr. 20, 1979, as amended at 
54 FR 14072, Apr. 7, 1989]



Sec.  1.2  Procedure.

    (a) Application. The request for advice or interpretation should be 
submitted in writing (one original and two copies) to the Secretary of 
the Commission and should: (1) State clearly the question(s) that the 
applicant wishes resolved; (2) cite the provision of law under which the 
question arises; and (3) state all facts which the applicant believes to 
be material. In addition, the identity of the companies and other 
persons involved should be disclosed. Letters relating to unnamed 
companies or persons may not be answered. Submittal of additional facts 
may be requested prior to the rendering of any advice.
    (b) Compliance matters. If the request is for advice as to whether 
the proposed course of action may violate

[[Page 13]]

an outstanding order to cease and desist issued by the Commission, such 
request will be considered as provided for in Sec.  2.41 of this 
chapter.

[44 FR 21624, Apr. 11, 1979, as amended at 44 FR 40638, July 12, 1979]



Sec.  1.3  Advice.

    (a) On the basis of the materials submitted, as well as any other 
information available, and if practicable, the Commission or its staff 
will inform the requesting party of its views.
    (b) Any advice given by the Commission is without prejudice to the 
right of the Commission to reconsider the questions involved and, where 
the public interest requires, to rescind or revoke the action. Notice of 
such rescission or revocation will be given to the requesting party so 
that he may discontinue the course of action taken pursuant to the 
Commission's advice. The Commission will not proceed against the 
requesting party with respect to any action taken in good faith reliance 
upon the Commission's advice under this section, where all the relevant 
facts were fully, completely, and accurately presented to the Commission 
and where such action was promptly discontinued upon notification of 
rescission or revocation of the Commission's approval.
    (c) Advice rendered by the staff is without prejudice to the right 
of the Commission later to rescind the advice and, where appropriate, to 
commence an enforcement proceeding.

[44 FR 21624, Apr. 11, 1979]



Sec.  1.4  Public disclosure.

    Written advice rendered pursuant to this section and requests 
therefor, including names and details, will be placed in the 
Commission's public record immediately after the requesting party has 
received the advice, subject to any limitations on public disclosure 
arising from statutory restrictions, the Commission's rules, and the 
public interest. A request for confidential treatment of information 
submitted in connection with the questions should be made separately.

[44 FR 21624, Apr. 11, 1979]

                             Industry Guides



Sec.  1.5  Purpose.

    Industry guides are administrative interpretations of laws 
administered by the Commission for the guidance of the public in 
conducting its affairs in conformity with legal requirements. They 
provide the basis for voluntary and simultaneous abandonment of unlawful 
practices by members of industry. Failure to comply with the guides may 
result in corrective action by the Commission under applicable statutory 
provisions. Guides may relate to a practice common to many industries or 
to specific practices of a particular industry.



Sec.  1.6  How promulgated.

    Industry guides \1\ are promulgated by the Commission on its own 
initiative or pursuant to petition filed with the Secretary or upon 
informal application therefor, by any interested person or group, when 
it appears to the Commission that guidance as to the legal requirements 
applicable to particular practices would be beneficial in the public 
interest and would serve to bring about more widespread and equitable 
observance of laws administered by the Commission. In connection with 
the promulgation of industry guides, the Commission at any time may 
conduct such investigations, make such studies, and hold such 
conferences or hearings as it may deem appropriate. All or any part of 
any such investigation, study, conference, or hearing may be conducted 
under the provisions of subpart A of part 2 of this chapter.
---------------------------------------------------------------------------

    \1\ In the past, certain of these have been promulgated and referred 
to as trade practice rules.
---------------------------------------------------------------------------



 Subpart B_Rules and Rulemaking Under Section 18(a)(1)(B) of the FTC Act

    Authority: 15 U.S.C. 46; 15 U.S.C. 57a; 5 U.S.C. 552; sec. 212(a), 
Pub. L. 104-121, 110 Stat. 857 (5 U.S.C. 601 note).



Sec.  1.7  Scope of rules in this subpart.

    The rules in this subpart apply to and govern proceedings for the 
promulgation of rules as provided in section

[[Page 14]]

18(a)(1)(B) of the Federal Trade Commission Act. Such rules shall be 
known as trade regulation rules. All other rulemaking proceedings shall 
be governed by the rules in subpart C, except as otherwise required by 
law or as otherwise specified in this chapter.

[46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985]



Sec.  1.8  Nature, authority and use of trade regulation rules.

    (a) For the purpose of carrying out the provisions of the Federal 
Trade Commission Act, the Commission is empowered to promulgate trade 
regulation rules which define with specificity acts or practices which 
are unfair or deceptive acts or practices in or affecting commerce. Such 
rules may include requirements prescribed for the purpose of preventing 
such acts or practices. A violation of a rule shall constitute an unfair 
or deceptive act or practice in violation of section 5(a)(1) of that 
Act, unless the Commission otherwise expressly provides in its rule. 
However, the respondent in an adjudicative proceeding may show that his 
conduct does not violate the rule or assert any other defense to which 
he is legally entitled.
    (b) The Commission at any time may conduct such investigations, make 
such studies and hold such conferences as it may deem necessary. All or 
any part of any such investigation may be conducted under the provisions 
of subpart A of part 2 of this chapter.

[46 FR 26288, May 12, 1981]



Sec.  1.9  Petitions to commence trade regulation rule proceedings.

    Trade regulation rule proceedings may be commenced by the Commission 
upon its own initiative or pursuant to written petition filed with the 
Secretary by any interested person stating reasonable grounds therefor. 
If the Commission determines to commence a trade regulation rule 
proceeding pursuant to the petition, the petitioner shall be mailed a 
copy of the public notices issued under Sec. Sec.  1.10, 1.11 and 1.12. 
Any person whose petition is not deemed by the Commission sufficient to 
warrant commencement of a rulemaking proceeding shall be notified of 
that determination and may be given an opportunity to submit additional 
data.

[46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985]



Sec.  1.10  Advance notice of proposed rulemaking.

    (a) Prior to the commencement of any trade regulation rule 
proceeding, the Commission shall publish in the Federal Register an 
advance notice of such proposed proceeding.
    (b) The advance notice shall:
    (1) Contain a brief description of the area of inquiry under 
consideration, the objectives which the Commission seeks to achieve, and 
possible regulatory alternatives under consideration by the Commission; 
and
    (2) Invite the response of interested persons with respect to such 
proposed rulemaking, including any suggestions or alternative methods 
for achieving such objectives.
    (c) The advance notice shall be submitted to the Committee on 
Commerce, Science, and Transportation of the Senate and to the Committee 
on Interstate and Foreign Commerce of the House of Representatives.
    (d) The Commission may, in addition to publication of the advance 
notice, use such additional mechanisms as it considers useful to obtain 
suggestions regarding the content of the area of inquiry before 
publication of an initial notice of proposed rulemaking pursuant to 
Sec.  1.11.

[46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985]



Sec.  1.11  Commencement of a rulemaking proceeding.

    (a) Initial notice. A trade regulation rule proceeding shall 
commence with an initial notice of proposed rulemaking. Such notice 
shall be published in the Federal Register not sooner than 30 days after 
it has been submitted to the Committee on Commerce, Science, and 
Transportation of the Senate and to the Committee on Interstate and 
Foreign Commerce of the House of Representatives. The initial notice 
shall include:
    (1) The text of the proposed rule including any alternatives which 
the Commission proposes to promulgate;

[[Page 15]]

    (2) Reference to the legal authority under which the rule is 
proposed;
    (3) A statement describing with particularity the reason for the 
proposed rule;
    (4) An invitation to all interested persons to propose issues which 
meet the criteria of Sec.  1.13(d)(1)(i) for consideration in accordance 
with Sec.  1.13 (d)(5) and (d)(6);
    (5) An invitation to all interested persons to comment on the 
proposed rule; and
    (6) A statement of the manner in which the public may obtain copies 
of the preliminary regulatory analysis.
    (b) Preliminary regulatory analysis. Except as otherwise provided by 
statute, the Commission shall, when commencing a rulemaking proceeding, 
issue a preliminary regulatory analysis which shall contain:
    (1) A concise statement of the need for, and the objectives of, the 
proposed rule;
    (2) A description of any reasonable alternatives to the proposed 
rule which may accomplish the stated objective of the rule in a manner 
consistent with applicable law;
    (3) For the proposed rule, and for each of the alternatives 
described in the analysis, a preliminary analysis of the projected 
benefits and any adverse economic effects and any other effects, and of 
the effectiveness of the proposed rule and each alternative in meeting 
the stated objectives of the proposed rule; and
    (4) The information required by the Regulatory Flexibility Act, 5 
U.S.C. 601-612, and the Paperwork Reduction Act, 44 U.S.C. 3501-3520, if 
applicable.

[46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985; 
63 FR 36340, July 6, 1998]



Sec.  1.12  Final notice.

    A final notice of proposed rulemaking shall be published in the 
Federal Register and, to the extent practicable, otherwise made 
available to interested persons. The final notice shall include:
    (a) Designated issues, unless there are none, which are to be 
considered in accordance with Sec.  1.13 (d)(5) and (d)(6);
    (b) The time and place of an informal hearing;
    (c) Instructions to interested persons seeking to make oral 
presentations;
    (d) A requirement that interested persons who desire to avail 
themselves of the procedures of Sec.  1.13 (d)(5) and (d)(6) with 
respect to any issue designated in paragraph (a) of this section must 
identify their interests with respect to those issues in such manner as 
may be established by the presiding officer; and
    (e) an incorporation by reference of the contents of the initial 
notice.

[40 FR 33966, Aug. 13, 1975, as amended at 50 FR 53303, Dec. 31, 1985]



Sec.  1.13  Rulemaking proceeding.

    (a) Written comments. After commencement of a trade regulation rule 
proceeding, the Commission shall accept written submissions of data, 
views, and arguments on all issues of fact, law, and policy. The initial 
notice shall specify the deadline for filing written comments under this 
subsection.
    (b) Comments proposing issues subject to the procedures of Sec.  
1.13 (d)(5) and (d)(6). Interested persons may propose issues for 
consideration in accordance with Sec.  1.13 (d)(5) and (d)(6) until 
thirty (30) days after the close of the written comment period or such 
other period as the Commission may establish in the initial notice.
    (c) Presiding officer--(1) Assignment. Upon commencement of a 
proposed trade regulation rule proceeding, a presiding officer shall be 
appointed by the Chief Presiding Officer or, when the Commission or one 
or more of its members serves as presiding officer, by the Commission.
    (2) Powers of the presiding officer. The presiding officer shall be 
responsible for the orderly conduct of the rulemaking proceeding and the 
maintenance of the rulemaking and public records until the close of the 
postrecord comment period. He shall have all powers necessary to that 
end including the following:
    (i) To publish a final notice in accordance with Sec.  1.12 or issue 
any other public notice that may be necessary for the orderly conduct of 
the rulemaking proceeding;

[[Page 16]]

    (ii) To designate or modify, issues for consideration in accordance 
with Sec.  1.13 (d)(5) and (d)(6);
    (iii) To set the time and place of the informal hearing and to 
change any time periods prescribed in this subpart;
    (iv) To prescribe rules or issue rulings to avoid unnecessary costs 
or delay. Such rules or rulings may include, but are not limited to, the 
imposition of reasonable time limits on each person's oral presentation; 
and requirements that any examination; including cross-examination, 
which a person may be entitled to conduct or have conducted be conducted 
by the presiding officer on behalf of that person in such a manner as 
the presiding officer determines to be appropriate and to be required 
for a full and true disclosure with respect to any issue designated for 
consideration in accordance with Sec.  1.13 (d)(5) and (d)(6);
    (v) To make rules and rulings limiting the representation of 
interested persons for the purpose of examination, including cross-
examination, and governing the manner in which such examination is 
limited, including the selection of a representative from among a group 
of persons with the same or similar interests;
    (vi) To require that oral presentations at the informal hearing or 
responses to written questions be under oath;
    (vii) To require that oral presentations at the informal hearing be 
submitted in writing in advance of presentation;
    (viii) To certify questions to the Commission for its determination; 
and
    (ix) To rule upon all motions or petitions of interested persons, 
which motions or petitions must be filed with the presiding officer 
until the close of the postrecord comment period.
    (3) Review of rulings by the presiding officer--(i) Review after 
certification by the presiding officer. Except as otherwise provided in 
paragraph (c)(3)(ii) of this section, applications for review of a 
ruling will not be entertained by the Commission prior to its review of 
the record pursuant to Sec.  1.14, unless the presiding officer 
certifies in writing to the Commission that a ruling involves a 
controlling question of law or policy as to which there is substantial 
ground for difference of opinion and that an immediate review of the 
ruling may materially advance the ultimate termination of the proceeding 
or subsequent review will be an inadequate remedy. Within five (5) days 
after a ruling by the presiding officer, any interested person may 
petition the presiding officer for certification of that ruling to the 
Commission. Certification of a ruling shall not stay the rulemaking 
proceeding unless the presiding officer or the Commission shall so 
order. Submissions to the Commission not to exceed fifteen (15) pages 
may be made within ten (10) days of the presiding officer's 
certification. All such filings shall be a part of the rulemaking 
record. The Commission may thereupon, in its discretion, permit the 
appeal. Commission review, if permitted, will be based on the 
application for review and any additional submissions, without oral 
argument or further briefs, unless otherwise ordered by the Commission.
    (ii) Review without certification by the presiding officer. Within 
ten (10) days after publication of the final notice, any interested 
person may petition the Commission for addition, modification or 
deletion of a designated issue, accompanied by a filing not to exceed 
fifteen (15) pages. Additional submissions on the issue by other 
interested persons, not to exceed fifteen (15) pages, may be made within 
twenty (20) days of the publication of the final notice. The Commission 
may thereupon, in its discretion, permit the appeal. Commission review, 
if permitted, will be based on the petition and any additional 
submissions, without oral argument or further briefs, unless otherwise 
ordered by the Commission. A petition hereunder shall not stay the 
rulemaking proceeding unless the presiding officer or the Commission 
shall so order. All petitions filed under this paragraph shall be a part 
of the rulemaking record. Notice of the filing of any such petition may 
be obtained from the Office of the Secretary of the Commission. In the 
event any designated issue is added or substantially modified by the 
Commission, interested persons shall be given a further opportunity to 
identify their interests with respect to those issues.
    (4) Substitution of presiding officer. In the event of the 
substitution of a new

[[Page 17]]

presiding officer for the one originally appointed, any motion 
predicated upon such substitution shall be made within five (5) days 
thereafter.
    (5) Organization. In the performance of their rulemaking functions, 
presiding officers shall be responsible to the chief presiding officer 
who shall not be responsible to any other officer or employee of the 
Commission.
    (6) Ex parte communications. Except as required for the disposition 
of ex parte matters as authorized by law, no presiding officer shall 
consult any person or party with respect to any fact in issue unless 
such officer gives notice and opportunity for all parties to 
participate.
    (d) Informal hearings. An informal hearing with the opportunity for 
oral presentations on all issues shall be conducted by the presiding 
officer. In addition, if an issue is designated pursuant to these rules 
for consideration in accordance with Sec.  1.13(d) (5) and (6), the 
informal hearing on such issues shall be conducted in accordance with 
those paragraphs. For all other issues the presiding officer may in his 
discretion employ, in whole or in part, the procedures of those 
paragraphs.
    (1) Nature of issues for consideration in accordance with Sec.  1.13 
(d)(5) and (d)(6)--(i) Issues that must be considered in accordance with 
Sec.  1.13(d)(5) and (d)(6). The only issues that must be designated for 
consideration in accordance with paragraphs (d)(5) and (d)(6) of this 
section are disputed issues of fact that are determined by the 
Commission or the presiding officer to be material and necessary to 
resolve.
    (ii) Issues that may be considered in accordance with Sec.  
1.13(d)(5) and (d)((6). The Commission and the presiding officer retain 
the power to designate any other issues for consideration in accordance 
with paragraphs (d)(5) and (d)(6) of this section.
    (2) Addition or modification of issues for consideration in 
accordance with Sec.  1.13(d)(5) and (d)(6). The presiding officer may 
at any time on his own motion or pursuant to a written petition by 
interested persons, add or modify any issues designated pursuant to 
Sec.  1.12(a). No such petition shall be considered unless good cause is 
shown why any such proposed issue was not proposed pursuant to Sec.  
1.13(b).
    (3) Identification of interests. Not later than twenty (20) days 
after publication of the final notice each interested person who desires 
to avail himself of the procedures of paragraphs (d)(5) and (d)(6) of 
this section shall notify the presiding officer in writing of his 
particular interest with respect to each issue designated for 
consideration in accordance with those subsections. In the event that 
new issues are designated, each interested person shall promptly notify 
the presiding officer of his particular interest with respect to each 
such issue.
    (4) Examination and cross-examination by the presiding officer. The 
presiding officer may conduct any examination, including cross-
examination, to which a person may be entitled. For that purpose he may 
require submission of written requests for presentation of questions to 
any person making oral presentations and shall determine whether to ask 
such questions or any other questions. All requests for presentation of 
questions shall be placed in the rulemaking record.
    (5) Examination, cross-examination, and the presentation of rebuttal 
submissions by interested persons--(i) In general. The presiding officer 
shall conduct or allow to be conducted examination, including cross-
examination of oral presentations and the presentation of rebuttal 
submissions relevant to the issues designated for consideration in 
accordance with paragraphs (d)(5) and (d)(6) of this section. 
Examination, including, cross-examination, and the presentation of 
rebuttal submissions, shall be allowed to the extent to which it is 
appropriate and is required for a full and true disclosure with respect 
to those issues. Requests for an opportunity to examine, including 
cross-examine, or to present rebuttal submissions, shall be accompanied 
by a specific justification therefor. In determining whether or not to 
grant such requests, the presence of the following circumstances 
indicate that such requests should be granted:
    (A) An issue for examination including cross-examination, or the 
presentation of rebuttal submissions, is an

[[Page 18]]

issue of specific in contrast to legislative fact.
    (B) A full and true disclosure with respect to the issue can only be 
achieved through examination including cross-examination rather than 
through rebuttal submissions or the presentation of additional oral 
submissions.
    (C) Circumstantial guarantees of the trustworthiness of a 
presentation do not exist.
    (D) The particular presentation is required for the resolution of a 
designated issue.
    (ii) Selection of representatives for cross-examination. After 
consideration of the information supplied in response to the final 
notice, the presiding officer shall identify groups of persons with the 
same or similar interests in the proceeding. Any such group may be 
required to select a single representative for the purpose of 
examination, including cross-examination. If a group is unable to select 
a representative then the presiding officer may select a representative 
of each such group.
    (iii) Inability to select representative for examination, including 
cross-examination. No person shall be denied the opportunity to conduct 
or have conducted, examination, including cross-examination, under 
paragraph (d)(5)(i) of this section if he is a member of a group as 
described in paragraph (d)(5)(ii) of this section and is unable to agree 
upon group representation with other group members after a good faith 
effort to do so and seeks to present substantial and relevant issues 
which will not be adequately presented by the group representative. In 
that event he shall be allowed to conduct or have conducted any 
examination, including cross-examination, to which he is entitled on 
issues designated for consideration in accordance with paragraphs (d)(5) 
and (d)(6) of this section and which affect his particular interest.
    (6) Requests to compel the attendance of persons or the production 
of documents or to obtain responses to written questions. During the 
course of the rulemaking proceeding, the presiding officer shall 
entertain requests from the Commission's staff or any interested person 
to compel the attendance of persons or the production of documents or to 
obtain responses to written questions. Requests to compel the attendance 
of persons or the production of documents or to obtain responses to 
written questions shall contain a statement showing the general 
relevancy of the material, information or presentation, and the 
reasonableness of the scope of the request, together with a showing that 
such material, information or presentation is not available by voluntary 
methods and cannot be obtained through examination, including cross-
examination, of oral presentations or the presentation of rebuttal 
submissions, and is appropriate and required for a full and true 
disclosure with respect to the issues designated for consideration in 
accordance with paragraphs (d)(5) and (d)(6) of this section. If the 
presiding officer determines that a request should be granted, he shall 
transmit his determination to the Commission which shall determine 
whether to issue a civil investigative demand under Sec.  2.7(b). 
Information received in response to such a demand may be disclosed in 
the rulemaking proceeding subject to an in camera order under Sec.  
1.18(b).
    (e) Written transcript. A verbatim transcript shall be made of the 
informal hearing which transcript shall be placed in the rulemaking 
record.
    (f) Staff recommendations. The staff shall make recommendations to 
the Commission in a report on the rulemaking record. Such report shall 
contain its analysis of the record and its recommendations as to the 
form of the final rule.
    (g) Recommended decision. After publication of the staff report, the 
presiding officer shall make a recommended decision based upon his or 
her findings and conclusions as to all relevant and material evidence, 
and taking into account the staff report. The recommended decision shall 
be made by the presiding officer who presided over the rulemaking 
proceeding except that such recommended decision may be made by another 
officer if the officer who presided over the proceeding is no longer 
available to the Commission.
    (h) Postrecord comment. The staff report and the presiding officer's 
recommended decision shall be the subject of public comment for a period 
to be prescribed by the presiding officer at

[[Page 19]]

the time the recommended decision is placed in the rulemaking record. 
The comment period shall be no less than sixty (60) days. The comments 
shall be confined to information already in the record and may include 
requests for review by the Commission of determinations made by the 
presiding officer.
    (i) Commission review of the rulemaking record. The Commission shall 
review the rulemaking record to determine what form of rule, if any, it 
should promulgate. During this review process, the Commission may allow 
persons who have previously participated in the proceeding to make oral 
presentations to the Commission, unless it determines with respect to 
that proceeding that such presentations would not significantly assist 
it in its deliberations. Presentations shall be confined to information 
already in the rulemaking record. Requests to participate in an oral 
presentation must be received by the Commission no later than the close 
of the comment period under Sec.  1.13(h). The identity of the 
participants and the format of such presentations will be announced in 
advance by the Office of Public Information in the Commisison's Weekly 
Calendar and Notice of ``Sunshine'' Meetings and in accordance with the 
applicable provisions of 5 U.S.C. 552(b) and Sec.  4.15 of the 
Commission's Rules of Practice. Such presentations will be transcribed 
verbatim or summarized at the discretion of the Commission and a copy of 
the transcript or summary and copies of any written communications and 
summaries of any oral communications relating to such presentations 
shall be placed on the rulemaking record.

[40 FR 33966, Aug. 13, 1975, as amended at 43 FR 39084, Sept. 1, 1978; 
45 36341, May 29, 1980; 45 FR 78628, Nov. 26, 1980; 46 FR 14888, Mar. 3, 
1981; 46 FR 26288, May 12, 1981; 50 FR 53303, Dec. 31, 1985; 54 FR 
19886, May 9, 1989]



Sec.  1.14  Promulgation.

    (a) The Commission, after review of the rulemaking record, may 
issue, modify, or decline to issue any rule. Where it believes that it 
should have further information or additional views of interested 
persons, it may withhold final action pending the receipt of such 
additional information or views. If it determines not to issue a rule, 
it may adopt and publish an explanation for not doing so.
    (1) Statement of Basis and Purpose. If the Commission determines to 
promulgate a rule, it shall adopt a Statement of Basis and Purpose to 
accompany the rule which shall include:
    (i) A statement as to the prevalence of the acts or practices 
treated by the rule;
    (ii) A statement as to the manner and context in which such acts or 
practices are unfair or deceptive;
    (iii) A statement as to the economic effect of the rule, taking into 
account the effect on small businesses and consumers;
    (iv) a statement as to the effect of the rule on state and local 
laws; and
    (v) A statement of the manner in which the public may obtain copies 
of the final regulatory analysis.
    (2) Final regulatory analysis. Except as otherwise provided by 
statute, if the Commission determines to promulgate a final rule, it 
shall issue a final regulatory analysis relating to the final rule. Each 
final regulatory analysis shall contain:
    (i) A concise statement of the need for, and the objectives of, the 
final rule;
    (ii) A description of any alternatives to the final rule which were 
considered by the Commission;
    (iii) An analysis of the projected benefits and any adverse economic 
effects and any other effects of the final rule;
    (iv) An explanation of the reasons for the determination of the 
Commission that the final rule will attain its objectives in a manner 
consistent with applicable law and the reasons the particular 
alternative was chosen;
    (v) A summary of any significant issues raised by the comments 
submitted during the public comment period in response to the 
preliminary regulatory analysis, and a summary of the assessment by the 
Commission of such issues; and
    (vi) The information required by the Regulatory Flexibility Act, 5 
U.S.C. 601-612, and the Paperwork Reduction Act, 44 U.S.C. 3501-3520, if 
applicable.
    (3) Small entity compliance guide. For each rule for which the 
Commission must prepare a final regulatory flexibility analysis, the 
Commission will

[[Page 20]]

publish one or more guides to assist small entities in complying with 
the rule. Such guides will be designated as ``small entity compliance 
guides.''
    (b) In the event the Commission determines, upon its review of the 
rulemaking record, to propose a revised rule for further proceedings in 
accordance with this subpart, such proceedings, including the 
opportunity of interested persons to avail themselves of the procedures 
of Sec.  1.13 (d)(5) and (d)(6), shall be limited to those portions of 
the revised rule, the subjects and issues of which were not 
substantially the subject of comment in response to a previous notice of 
proposed rulemaking.
    (c) The final rule and Statement of Basis and Purpose shall be 
published in the Federal Register. A rule issued under this subpart 
shall be deemed promulgated at 3 p.m. Eastern Standard Time on the 
fourth day after the date on which the final rule and Statement of Basis 
and Purpose are published in the Federal Register. In the event such day 
is a Saturday, Sunday or national holiday, then the rule is deemed 
promulgated at 3 p.m. Eastern Standard Time on the following business 
day.

[40 FR 33966, Aug. 13, 1975, as amended at 46 FR 26289, May 12, 1981; 50 
FR 53304, Dec. 31, 1985; 63 FR 36340, July 6, 1998]



Sec.  1.15  Amendment or repeal of a rule.

    (a) Substantive amendment or repeal of a rule. The procedures for 
substantive amendment to or repeal of a rule are the same as for the 
issuance thereof.
    (b) Nonsubstantive amendment of a rule. The Commission may make a 
nonsubstantive amendment to a rule by announcing the amendment in the 
Federal Register.

[46 FR 26289, May 12, 1981]



Sec.  1.16  Petition for exemption from trade regulation rule.

    Any person to whom a rule would otherwise apply may petition the 
Commission for an exemption from such rule. The procedures for 
determining such a petition shall be those of subpart C of these rules.

[40 FR 33966, Aug. 13, 1975]



Sec.  1.17  [Reserved]



Sec.  1.18  Rulemaking record.

    (a) Definition. For purposes of these rules the term rulemaking 
record includes the rule, its Statement of Basis and Purpose, the 
verbatim transcripts of the informal hearing, written submissions, the 
recommended decision of the presiding officer, and the staff 
recommendations as well as any public comment thereon, verbatim 
transcripts or summaries of oral presentations to the Commission any 
communications placed on the rulemaking record pursuant to Sec.  1.18c 
and any other information which the Commission considers relevant to the 
rule.
    (b) Public availability. The rulemaking record shall be publicly 
available except when the presiding officer, for good cause shown, 
determines that it is in the public interest to allow any submission to 
be received in camera subject to the provisions of Sec.  4.11 of this 
chapter.
    (c) Communications to Commissioners and Commissioners' personal 
staffs--(1) Communications by outside parties. Except as otherwise 
provided in this subpart or by the Commission, after the Commission 
votes to issue an initial notice of proposed rulemaking, comment on the 
proposed rule should be directed to the presiding officer pursuant to 
Sec.  1.13. Communications with respect to the merits of that proceeding 
from any outside party to any Commissioner or Commissioner advisor shall 
be subject to the following treatment:
    (i) Written communications. Written communications, including 
written communications from members of Congress, received within the 
period for acceptance of initial written comments shall be forwarded 
promptly to the presiding officer for placement on the rulemaking 
record. Written communications received after the time period for 
acceptance of initial written comments but prior to any other deadline 
for the acceptance of written submissions will be forwarded promptly to 
the presiding officer, who will determine whether such communications 
comply with the applicable requirements for written submissions at that

[[Page 21]]

stage of the proceeding. Communications that comply with such 
requirements will be promptly placed on the rulemaking record. 
Noncomplying communications and all communications received after the 
time periods for acceptance of written submissions will be placed 
promptly on the public record.
    (ii) Oral communications. Oral communications are permitted only 
when advance notice of such oral communications is published by the 
Commission's Office of Public Information in its Weekly Calendar and 
Notice of ``Sunshine'' Meetings and when such oral communications are 
transcribed verbatim or summarized at the discretion of the Commissioner 
or Commissioner advisor to whom such oral communications are made and 
are promptly placed on the rulemaking record together with any written 
communications and summaries of any oral communications relating to such 
oral communications. Transcripts or summaries of oral communications 
which occur after the time period for acceptance of initial written 
comments but prior to any other deadline for the acceptance of written 
submissions will be forwarded promptly to the presiding officer together 
with any written communications and summaries of any oral communications 
relating to such oral communications. The presiding officer will 
determine whether such oral communications comply with the applicable 
requirements for written submissions at that stage of the proceeding. 
Transcripts or summaries of oral communications that comply with such 
requirements will be promptly placed on the rulemaking record together 
with any written communications and summaries of any oral communications 
relating to such oral communications. Transcripts or summaries of 
noncomplying oral communications will be promptly placed on the public 
record together with any written communications and summaries of any 
oral communications relating to such oral communications. No oral 
communications are permitted subsequent to the close of the postrecord 
comment period, except as provided in Sec.  1.13(i). If an oral 
communication does otherwise occur, the Commissioner or Commissioner 
advisor will promptly place on the public record either a transcript of 
the communication or a memorandum setting forth the contents of the 
communication and the circumstances thereof; such transcript or 
memorandum will not be part of the rulemaking record.
    (iii) Congressional communications. The provisions of paragraph 
(c)(1)(ii) of this section do not apply to communications from members 
of Congress. Memoranda prepared by the Commissioner or Commissioner 
advisor setting forth the contents of any oral congressional 
communications will be placed on the public record. If the communication 
occurs within the initial comment period and is transcribed verbatim or 
summarized, the transcript or summary will be promptly placed on the 
rulemaking record. A transcript or summary of any oral communication 
which occurs after the time period for acceptance of initial written 
comments but prior to any other deadline for the acceptance of written 
submissions will be forwarded promptly to the presiding officer, who 
will determine whether such oral communication complies with the 
applicable requirements for written submissions at that stage of the 
proceeding. Transcripts or summaries of oral communications that comply 
with such requirements will be promptly placed on the rulemaking record. 
Transcripts or summaries of noncomplying oral communications will be 
placed promptly on the public record.
    (2) Communications by certain officers, employees, and agents of the 
Commission. Any officer, employee, or agent of the Commission with 
investigative or other responsibility relating to any rulemaking 
proceeding within any operating bureau of the Commission is prohibited 
from communicating or causing to be communicated to any Commissioner or 
to the personal staff of any Commissioner any fact which is relevant to 
the merits of such proceeding and which is not on the rulemaking record 
of such proceeding, unless such communication is made available to the 
public and is included in the rulemaking record. The provisions of this 
subsection shall not apply to any communication to the extent such 
communication is required for the

[[Page 22]]

disposition of ex parte matters as authorized by law.

(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46), 80 Stat. 383, as amended (5 
U.S.C. 552))

[42 FR 43974, Sept. 1, 1977, as amended at 42 FR 60563, Nov. 28, 1977; 
44 FR 16368, Mar. 19, 1979; 44 FR 21005, Apr. 9, 1979; 45 FR 78628, Nov. 
26, 1980; 50 FR 53304, Dec. 31, 1985]



Sec.  1.19  Modification of a rule by the Commission at the time of judicial review.

    In the event that a reviewing court determines under section 
18(e)(2) of the Federal Trade Commission Act, to allow further 
submissions and presentations on the rule, the Commission may modify or 
set aside its rule or make a new rule by reason of the additional 
submissions and presentations. Such modified or new rule shall then be 
filed with the court together with an appropriate Statement of Basis and 
Purpose and the return of such submissions and presentations.

[40 FR 33966, Aug. 13, 1975, as amended at 50 FR 53304, Dec. 31, 1985]



Sec.  1.20  Alternative procedures.

    If the Commission determines at the commencement of a rulemaking 
proceeding to employ procedures other than those established in the 
remainder of this subpart, it may do so by announcing those procedures 
in the Federal Register notice commencing the rulemaking proceeding.

[43 FR 35683, Aug. 11, 1978]



     Subpart C_Rules Promulgated Under Authority Other Than Section 
                       18(a)(1)(B) of the FTC Act

    Authority: 15 U.S.C. 46; 5 U.S.C. 552; Sec. 212(a), Pub. L. 104-121, 
110 Stat. 857 (5 U.S.C. 601 note).



Sec.  1.21  Scope of the rules in this subpart.

    This subpart sets forth procedures for the promulgation of rules 
under authority other than section 18(a)(1)(B) of the FTC Act except as 
otherwise required by law or otherwise specified in the rules of this 
chapter. This subpart does not apply to the promulgation of industry 
guides, general statements of policy, rules of agency organization, 
procedure, or practice, or rules governed by subpart B of this part.

[50 FR 53304, Dec. 31, 1985]



Sec.  1.22  Rulemaking.

    (a) Nature and authority. For the purpose of carrying out the 
provisions of the statutes administered by it, the Commission is 
empowered to promulgate rules and regulations applicable to unlawful 
trade practices. Such rules and regulations express the experience and 
judgment of the Commission, based on facts of which it has knowledge 
derived from studies, reports, investigations, hearings, and other 
proceedings, or within official notice, concerning the substantive 
requirements of the statutes which it administers.
    (b) Scope. Rules may cover all applications of a particular 
statutory provision and may be nationwide in effect, or they may be 
limited to particular areas or industries or to particular product or 
geographic markets, as may be appropriate.
    (c) Use of rules in adjudicative proceedings. When a rule is 
relevant to any issue involved in an ajudicative proceeding thereafter 
instituted, the Commission may rely upon the rule to resolve such issue, 
provided that the respondent shall have been given a fair hearing on the 
applicability of the rule to the particular case.

[40 FR 15232, Apr. 4, 1975]



Sec.  1.23  Quantity limit rules.

    Quantity limit rules are authorized by section 2(a) of the Clayton 
Act, as amended by the Robinson-Patman Act. These rules have the force 
and effect of law.

[32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4, 1975]



Sec.  1.24  Rules applicable to wool, fur, and textile fiber products 
and rules promulgated under the Fair Packaging and Labeling Act.

    Rules having the force and effect of law are authorized under 
section 6 of the Wool Products Labeling Act of 1939, section 8 of the 
Fur Products Labeling Act, section 7 of the Textile Fiber

[[Page 23]]

Products Identification Act, and sections 4, 5, and 6 of the Fair 
Packaging and Labeling Act.

[40 FR 15233, Apr. 4, 1975]



Sec.  1.25  Initiation of proceedings--petitions.

    Proceedings for the issuance of rules or regulations, including 
proceedings for exemption of products or classes of products from 
statutory requirements, may be commenced by the Commission upon its own 
initiative or pursuant to petition filed with the Secretary by any 
interested person or group stating reasonable grounds therefor. Anyone 
whose petition is not deemed by the Commission sufficient to warrant the 
holding of a rulemaking proceeding will be promptly notified of that 
determination and given an opportunity to submit additional data. 
Procedures for the amendment or repeal of a rule or regulation are the 
same as for the issuance thereof.

[32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4, 1975]



Sec.  1.26  Procedure.

    (a) Investigations and conferences. In connection with any 
rulemaking proceeding, the Commission at any time may conduct such 
investigations, make such studies, and hold such conferences as it may 
deem necessary. All or any part of any such investigation may be 
conducted under the provisions of subpart A of part 2 of this chapter.
    (b) Notice. General notice of proposed rulemaking will be published 
in the Federal Register and, to the extent practicable, otherwise made 
available to interested persons except when the Commission for good 
cause finds that notice and public procedure relating to the rule are 
impractical, unnecessary or contrary to the public interest and 
incorporates such finding and a brief statement of the reasons therefor 
in the rule. If the rulemaking proceeding was instituted pursuant to 
petition, a copy of the notice will be served on the petitioner. Such 
notice will include:
    (1) A statement of the time, place, and nature of the public 
proceedings;
    (2) Reference to the authority under which the rule is proposed;
    (3) Either the terms or substance of the proposed rule or 
description of the subjects and issues involved;
    (4) An opportunity for interested persons to participate in the 
proceeding through the submission of written data, views, or arguments; 
and(5) A statement setting forth such procedures for treatment of 
communications from persons not employed by the Commission to 
Commissioners or Commissioner Advisors with respect to the merits of the 
proceeding as will incorporate the requirements of Sec.  1.18(c), 
including the transcription of oral communications required by Sec.  
1.18(c)(2), adapted in such form as may be appropriate to the 
circumstances of the particular proceeding.
    (c) Oral hearings. Oral hearing on a proposed rule may be held 
within the discretion of the Commission, unless otherwise expressly 
required by law. Any such hearing will be conducted by the Commission, a 
member thereof, or a member of the Commission's staff. At the hearing 
interested persons may appear and express their views as to the proposed 
rule and may suggest such amendments, revisions, and additions thereto 
as they may consider desirable and appropriate. The presiding officer 
may impose reasonable limitations upon the length of time allotted to 
any person. If by reason of the limitations imposed the person cannot 
complete the presentation of his suggestions, he may within twenty-four 
(24) hours file a written statement covering those relevant matters 
which he did not orally present.
    (d) Promulgation of rules or orders. The Commission, after 
consideration of all relevant matters of fact, law, policy, and 
discretion, including all relevant matters presented by interested 
persons in the proceeding, will adopt and publish in the Federal 
Register an appropriate rule or order, together with a concise general 
statement of its basis and purpose and any necessary findings, or will 
give other appropriate public notice of disposition of the proceeding. 
The Federal Register publication will contain the information required 
by the Paperwork Reduction Act, 44 U.S.C. 3501-3520, and the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, if applicable. For each rule for 
which

[[Page 24]]

the Commission must prepare a final regulatory flexibility analysis, the 
Commission will publish one or more guides to assist small entities in 
complying with the rule. Such guides will be designated as ``small 
entity compliance guides.''
    (e) Effective date of rules. Except as provided in paragraphs (f) 
and (g) of this section, the effective date of any rule, or of the 
amendment, suspension, or repeal of any rule will be as specified in a 
notice published in the Federal Register, which date will be not less 
than thirty (30) days after the date of such publication unless an 
earlier effective date is specified by the Commission upon good cause 
found and published with the rule.
    (f) Effective date of rules and orders under Fair Packaging and 
Labeling Act. The effective date of any rule or order under the Fair 
Packaging and Labeling Act will be as specified by order published in 
the Federal Register, but shall not be prior to the day following the 
last day on which objections may be filed under paragraph (g) of this 
section.
    (g) Objections and request for hearing under Fair Packaging and 
Labeling Act. On or before the thirtieth (30th) day after the date of 
publication of an order in the Federal Register pursuant to paragraph 
(f) of this section, any person who will be adversely affected by the 
order if placed in effect may file objections thereto with the Secretary 
of the Commission, specifying with particularity the provisions of the 
order deemed objectionable, stating the grounds therefor, and requesting 
a public hearing upon such objections. Objections will be deemed 
sufficient to warrant the holding of a public hearing only:
    (1) If they establish that the objector will be adversely affected 
by the order;
    (2) If they specify with particularity the provisions of the order 
to which objection is taken; and
    (3) If they are supported by reasonable grounds which, if valid and 
factually supported, may be adequate to justify the relief sought.

Anyone who files objections which are not deemed by the Commission 
sufficient to warrant the holding of a public hearing will be promptly 
notified of that determination. As soon as practicable after the time 
for filing objections has expired, the Commission will publish a notice 
in the Federal Register specifying those parts of the order which have 
been stayed by the filing of objections or, if no objections sufficient 
to warrant the holding of a hearing have been filed, stating that fact.

[32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4, 1975, 
and amended at 44 FR 16368, Mar. 19, 1979; 50 FR 53304, Dec. 31, 1985; 
63 FR 36340, July 6, 1998]

Subpart D [Reserved]



                   Subpart E_Export Trade Associations



Sec.  1.41  Limited antitrust exemption.

    The Export Trade Act authorizes the organization and operation of 
export trade associations, and extends to them certain limited 
exemptions from the Sherman Act and the Clayton Act. It also extends the 
jurisdiction of the Commission under the Federal Trade Commission Act to 
unfair methods of competition used in export trade against competitors 
engaged in export trade, even though the acts constituting such unfair 
methods are done without the territorial jurisdiction of the United 
States.



Sec.  1.42  Notice to Commission.

    To obtain the exemptions afforded by the Act, an export trade 
association is required to file with the Commission, within thirty (30) 
days after its creation, a verified written statement setting forth the 
location of its offices and places of business, names, and addresses of 
its officers, stockholders, or members, and copies of its documents of 
incorporation or association. On the first day of January of each year 
thereafter, each association must file a like statement and, when 
required by the Commission to do so, must furnish to the Commission 
detailed information as to its organization, business, conduct, 
practices, management, and relation to other associations, corporations, 
partnerships, and individuals.

[[Page 25]]



Sec.  1.43  Recommendations.

    Whenever the Commission has reason to believe that an association 
has violated the prohibitions of section 2 of the Act, it may conduct an 
investigation. If, after investigation, it concludes that the law has 
been violated, it may make to such association recommendations for the 
readjustment of its business. If the association fails to comply with 
the recommendations, the Commission will refer its findings and 
recommendations to the Attorney General for appropriate action.



               Subpart F_Trademark Cancellation Procedure



Sec.  1.51  Applications.

    Applications for the institution of proceedings for the cancellation 
of registration of trade, service, or certification marks under the 
Trade-Mark Act of 1946 may be filed with the Secretary of the 
Commission. Such applications shall be in writing, signed by or in 
behalf of the applicant, and should identify the registration concerned 
and contain a short and simple statement of the facts constituting the 
alleged basis for cancellation, the name and address of the applicant, 
together with all relevant and available information. If, after 
consideration of the application, or upon its own initiative, the 
Commission concludes that cancellation of the mark may be warranted, it 
will institute a proceeding before the Commissioner of Patents for 
cancellation of the registration.



            Subpart G_Injunctive and Condemnation Proceedings



Sec.  1.61  Injunctions.

    In those cases where the Commission has reason to believe that it 
would be to the interest of the public, the Commission will apply to the 
courts for injunctive relief, pursuant to the authority granted in 
section 13 of the Federal Trade Commission Act.

[40 FR 15233, Apr. 4, 1975]



Sec.  1.62  Ancillary court orders pending review.

    Where petition for review of an order to cease and desist has been 
filed in a U.S. court of appeals, the Commission may apply to the court 
for issuance of such writs as are ancillary to its jurisdiction or are 
necessary in its judgment to prevent injury to the public or to 
competitors pendente lite.



Sec.  1.63  Injunctions: Wool, fur, and textile cases.

    In those cases arising under the Wool Products Labeling Act of 1939, 
Fur Products Labeling Act, and Textile Fiber Products Identification 
Act, where it appears to the Commission that it would be to the public 
interest for it to do so, the Commission will apply to the courts for 
injunctive relief, pursuant to the authority granted in such Acts.

[32 FR 8444, June 13, 1967, as amended at 41 FR 4814, Feb. 2, 1976]



Sec.  1.64  Condemnation proceedings.

    In those cases arising under the Wool Products Labeling Act of 1939 
and Fur Products Labeling Act, and where it appears to the Commission 
that the public interest requires such action, the Commission will apply 
to the courts for condemnation, pursuant to the authority granted in 
such Acts.

[32 FR 8444, June 13, 1967, as amended at 41 FR 4814, Feb. 2, 1976]



        Subpart H_Administration of the Fair Credit Reporting Act

    Authority: 84 Stat. 1128, 15 U.S.C. 1681 et seq.



Sec.  1.71  Administration.

    The general administration of the Fair Credit Reporting Act (Title 
VI of the Consumer Credit Protection Act of 1968; enacted October 26, 
1970; Pub. L. 91-508, 82 Stat. 146, 15 U.S.C. 1601 et seq.) is carried 
out by the Bureau of Consumer Protection, Division of Credit Practices. 
Any interested person may

[[Page 26]]

obtain copies of the Act and these procedures and rules of practice upon 
request to the Secretary of the Commission, Washington, DC 20580.

[36 FR 9293, May 22, 1971, as amended at 36 FR 18788, Sept. 22, 1971; 38 
FR 32438, Nov. 26, 1973; 46 FR 26290, May 12, 1981]



Sec.  1.72  Examination, counseling and staff advice.

    The Commission maintains a staff to carry out on-the-scene 
examination of records and procedures utilized to comply with the Fair 
Credit Reporting Act and to carry out industry counseling. Requests for 
staff interpretation of the Fair Credit Reporting Act should be directed 
to the Division of Credit Practices, Bureau of Consumer Protection. Such 
interpretations represent informal staff opinion which is advisory in 
nature and is not binding upon the Commission as to any action it may 
take in the matter. Administrative action to effect correction of minor 
infractions on a voluntary basis is taken in those cases where such 
procedure is believed adequate to effect immediate compliance and 
protect the public interest.

[36 FR 9293, May 22, 1971, as amended at 36 FR 18788, Sept. 22, 1971; 38 
FR 32438, Nov. 26, 1973; 46 FR 26290, May 12, 1981]



Sec.  1.73  Interpretations.

    (a) Nature and purpose. (1) The Commission issues and causes to be 
published in the Federal Register interpretations of the provisions of 
the Fair Credit Reporting Act on its own initiative or pursuant to the 
application of any person when it appears to the Commission that 
guidance as to the legal requirements of the Act would be in the public 
interest and would serve to bring about more widespread and equitable 
observance of the Act.
    (2) The interpretations are not substantive rules and do not have 
the force or effect of statutory provisions. They are guidelines 
intended as clarification of the Fair Credit Reporting Act, and, like 
industry guides, are advisory in nature. They represent the Commission's 
view as to what a particular provision of the Fair Credit Reporting Act 
means for the guidance of the public in conducting its affairs in 
conformity with that Act, and they provide the basis for voluntary and 
simultaneous abandonment of unlawful practices by members of industry. 
Failure to comply with such interpretations may result in corrective 
action by the Commission under applicable statutory provisions.
    (b) Procedure. (1) Requests for Commission interpretations should be 
submitted in writing to the Secretary of the Federal Trade Commission 
stating the nature of the interpretation requested and the reasons and 
justification therefor. If the request is granted, as soon as 
practicable thereafter, the Commission will publish a notice in the 
Federal Register setting forth the text of the proposed interpretation. 
Comments, views, or objections, together with the grounds therefor, 
concerning the proposed interpretation may be submitted to the Secretary 
of the Commission within thirty (30) days of public notice thereof. The 
proposed interpretation will automatically become final after the 
expiration of sixty (60) days from the date of public notice thereof, 
unless upon consideration of written comments submitted as hereinabove 
provided, the Commission determine to rescind, revoke, modify, or 
withdraw the proposed interpretation, in which event notification of 
such determination will be published in the Federal Register.
    (2) The issuance of such interpretations is within the discretion of 
the Commission and the Commission at any time may conduct such 
investigations and hold such conferences or hearings as it may deem 
appropriate. Any interpretation issued pursuant to this chapter is 
without prejudice to the right of the Commission to reconsider the 
interpretation, and where the public interest requires, to rescind, 
revoke, modify, or withdraw the interpretation, in which event 
notification of such action will be published in the Federal Register.
    (c) Applicability of interpretations. Interpretations issued 
pursuant to this subpart may cover all applications of a particular 
statutory provision, or they may be limited in application to a 
particular industry, as appropriate.

[36 FR 9293, May 22, 1971]

[[Page 27]]



 Subpart I_Procedures for Implementation of the National Environmental 
                           Policy Act of 1969

    Authority: 15 U.S.C. 46(g), 42 U.S.C. 4321 et seq.

    Source: 47 FR 3096, Jan. 22, 1982, unless otherwise noted.



Sec.  1.81  Authority and incorporation of CEQ Regulations.

    This subpart is issued pursuant to 102(2) of the National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.). Pursuant to Executive Order 11514 (March 5, 1970, as amended by 
Executive Order 11991, May 24, 1977) and the Environmental Quality 
Improvement Act of 1980, as amended (42 U.S.C. 4371 et seq.) the Council 
on Environmental Quality (CEQ) has issued comprehensive regulations for 
implementing the procedural provisions of NEPA (40 CFR parts 1500 
through 1508) (``CEQ Regulations''). Although it is the Commission's 
position that these regulations are not binding on it, the Commission's 
policy is to comply fully with the CEQ Regulations unless it determines 
in a particular instance or for a category of actions that compliance 
would not be consistent with the requirements of law. With this caveat, 
the Commission incorporates into this subpart the CEQ Regulations. The 
following are supplementary definitions and procedures to be applied in 
conjunction with the CEQ Regulations.

[47 FR 3096, Jan. 22, 1982, as amended at 50 FR 53304, Dec. 31, 1985]



Sec.  1.82  Declaration of policy.

    (a) Except for actions which are not subject to the requirements of 
section 102(2)(C) of NEPA, no Commission proposal for a major action 
significantly affecting the quality of the human environment will be 
instituted unless an environmental impact statement has been prepared 
for consideration in the decisionmaking. All relevant environmental 
documents, comments, and responses as provided in this subpart shall 
accompany such proposal through all review processes. ``Major actions, 
significantly affecting the quality of the human environment'' referred 
to in this subpart ``do not include bringing judicial or administrative 
civil or criminal enforcement actions'' CEQ Regulation (40 CFR 
1508.18(a)). In the event that the Commission in an administrative 
enforcement proceeding actively contemplates the adoption of standards 
or a form of relief which it determines may have a significant effect on 
the environment, the Commission will, when consistent with the 
requirements of law, provide for the preparation of an environmental 
assessment or an environmental impact statement or such other action as 
will permit the Commission to assess alternatives with a view toward 
avoiding or minimizing any adverse effect upon the environment.
    (b) No Commission proposal for legislation significantly affecting 
the quality of the human environment and concerning a subject matter in 
which the Commission has primary responsibility will be submitted to 
Congress without an accompanying environmental impact statement.
    (c) When the Commission finds that emergency action is necessary and 
an environmental impact statement cannot be prepared in conformance with 
the CEQ Regulations, the Commission will consult with CEQ about 
alternative arrangements in accordance with CEQ Regulation (40 CFR 
1506.11).



Sec.  1.83  Whether to commence the process for an environmental impact 
statement.

    (a) The Bureau responsible for submitting a proposed rule, guide, or 
proposal for legislation to the Commission for agency action shall, 
after consultation with the Office of the General Counsel, initially 
determine whether or not the proposal is one which requires an 
environmental impact statement. Except for matters where the 
environmental effects, if any, would appear to be either (1) clearly 
significant and therefore the decision is made to prepare an 
environmental impact statement, or (2) so uncertain that environmental 
analysis would be based on speculation, the Bureau should normally 
prepare an ``environmental assessment'' CEQ Regulation (40 CFR

[[Page 28]]

1508.9) for purposes of providing sufficient evidence and analysis for 
determining whether to prepare an environmental impact statement or a 
finding of no significant impact. The Bureau should involve 
environmental agencies to the extent practicable in preparing an 
assessment. An environmental assessment shall be made available to the 
public when the proposed action is made public along with any ensuing 
environmental impact statement or finding of no significant impact.
    (b) If the Bureau determines that the proposal is one which requires 
an environmental impact statement, it shall commence the ``scoping 
process'' CEQ Regulation (40 CFR 1501.7) except that the impact 
statement which is part of a proposal for legislation need not go 
through a scoping process but shall conform to CEQ Regulation (40 CFR 
1506.8). As soon as practicable after its decision to prepare an 
environmental impact statement and before the scoping process, the 
Bureau shall publish a notice of intent as provided in CEQ Regulations 
(40 CFR 1501.7 and 1508.22).
    (c) If, on the basis of an environmental assessment, the 
determination is made not to prepare a statement, a finding of ``no 
significant impact'' shall be made in accordance with CEQ Regulation (40 
CFR 1508.3) and shall be made available to the public as specified in 
CEQ Regulation (40 CFR 1506.6).



Sec.  1.84  Draft environmental impact statements: Availability and comment.

    Except for proposals for legislation, environmental impact 
statements shall be prepared in two stages: Draft statement and final 
statement.
    (a) Proposed rules or guides. (1) An environmental impact statement, 
if deemed necessary, shall be in draft form at the time a proposed rule 
or guide is published in the Federal Register and shall accompany the 
proposal throughout the decisionmaking process.
    (2) The major decision points with respect to rules and guides are:
    (i) Preliminary formulation of a staff proposal;
    (ii) The time the proposal is initially published in the Federal 
Register as a Commission proposal;
    (iii) Presiding officer's report (in trade regulation rule 
proceedings);
    (iv) Submission to the Commission of the staff report or 
recommendation for final action on the proposed guide or rule;
    (v) Final decision by the Commission. The decision on whether or not 
to prepare an environmental impact statement should occur at point 
(a)(2)(i) of this section. The publication of any draft impact statement 
should occur at point (a)(2)(ii) of this section. The publication of the 
final environmental impact statement should occur at point (a)(2)(iv) of 
this section.
    (b) Legislative proposals. In legislative matters, a legislative 
environmental impact statement shall be prepared in accordance with CEQ 
Regulation (40 CFR 1506.8).
    (c) In rule or guide proceedings the draft environmental impact 
statement shall be prepared in accordance with CEQ Regulation (40 CFR 
1502.9) and shall be placed in the public record to which it pertains; 
in legislative matters, the legislative impact statement shall be placed 
in a public record to be established, containing the legislative report 
to which it pertains; these will be available to the public through the 
Office of the Secretary and will be published in full with the 
appropriate proposed rule, guide, or legislative report; such statements 
shall also be filed with the Environmental Protection Agency's (EPA) 
Office of Environmental Review (CEQ Regulation (40 CFR 1506.9)) for 
listing in the weekly Federal Register Notice of draft environmental 
impact statements, and shall be circulated, in accordance with CEQ 
Regulations (40 CFR 1502.19, 1506.6) to appropriate federal, state and 
local agencies.
    (d) Forty-five (45) days will be allowed for comment on the draft 
environmental impact statement, calculated from the date of publication 
in the EPA's weekly Federal Register list of draft environmental impact 
statements. The Commission may in its discretion grant such longer 
period as the complexity of the issues may warrant.

[[Page 29]]



Sec.  1.85  Final environmental impact statements.

    (a) After the close of the comment period, the Bureau responsible 
for the matter will consider the comments received on the draft 
environmental impact statement and will put the draft statement into 
final form in accordance with the requirements of CEQ Regulation (40 CFR 
1502.9(b)), attaching the comments received (or summaries if response 
was exceptionally voluminous).
    (b) Upon Bureau approval of the final environmental impact statement 
the final statement will be
    (1) Filed with the EPA;
    (2) Forwarded to all parties which commented on the draft 
environmental impact statement and to other interested parties, if 
practicable;
    (3) Placed in the public record of the proposed rule or guide 
proceeding or legislative matter to which it pertains;
    (4) Distributed in any other way which the Bureau in consultation 
with CEQ deems appropriate.
    (c) In rule and guide proceedings, at least thirty (30) days will be 
allowed for comment on the final environmental impact statement, 
calculated from the date of publication in the EPA's weekly Federal 
Register list of final environmental impact statements. In no event will 
a final rule or guide be promulgated prior to ninety (90) days after 
notice of the draft environmental impact statement, except where 
emergency action makes such time period impossible.



Sec.  1.86  Supplemental statements.

    Except for proposals for legislation, as provided in CEQ Regulation 
(40 CFR 1502.9(c)), the Commission shall publish supplements to either 
draft or final environmental statements if:
    (a) The Commission makes substantial changes in the proposed action 
that are relevant to environmental concerns; or
    (b) There are significant new circumstances or information relevant 
to environmental concerns and bearing on the proposed action and its 
impacts. In the course of a trade regulation rule proceeding, the 
supplement will be placed in the rulemaking record.



Sec.  1.87  NEPA and agency decisionmaking.

    In its final decision on the proposed action or, if appropriate, in 
its recommendation to Congress, the Commission shall consider all the 
alternatives in the environmental impact statement and other relevant 
environmental documents and shall prepare a concise statement which, in 
accordance with CEQ Regulation Sec.  1505.2, shall:
    (a) Identify all alternatives considered by the Commission in 
reaching its decision or recommendation, specifying the alternatives 
which were considered to be environmentally preferable;
    (b) State whether all practicable means to avoid or minimize 
environmental harm from the alternative selected have been adopted, and 
if not, why they were not.



Sec.  1.88  Implementing procedures.

    (a) The General Counsel is designated the official responsible for 
coordinating the Commission's efforts to improve environmental quality. 
He will provide assistance to the staff in determining when an 
environmental impact statement is needed and in its preparation.
    (b) The Commission will determine finally whether an action complies 
with NEPA.
    (c) The Directors of the Bureaus of Consumer Protection and 
Competition will supplement these procedures for their Bureaus to assure 
that every proposed rule and guide is reviewed to assess the need for an 
environmental impact statement and that, where need exists, an 
environmental impact statement is developed to assure timely 
consideration of environmental factors.
    (d) The General Counsel will establish procedures to assure that 
every legislative proposal on a matter for which the Commission has 
primary responsibility is reviewed to assess the need for an 
environmental impact statement and that, where need exists, and 
environmental impact statement is developed to assure timely 
consideration of environmental factors.
    (e) Parties seeking information or status reports on environmental 
impact statements and other elements of

[[Page 30]]

the NEPA process, should contact the Assistant General Counsel for 
Litigation and Environmental Policy.



Sec.  1.89  Effect on prior actions.

    It is the policy of the Commission to apply these procedures to the 
fullest extent possible to proceedings which are already in progress.



         Subpart J_Economic Surveys, Investigations and Reports



Sec.  1.91  Authority and purpose.

    General and special economic surveys, investigations, and reports 
are made by the Bureau of Economics under the authority of the various 
laws which the Federal Trade Commission administers. The Commission may 
in any such survey or investigation invoke any or all of the compulsory 
processes authorized by law.

[32 FR 8444, June 13, 1967. Redesignated at 40 FR 15233, Apr. 4, 1975]



      Subpart K_Penalties for Violation of Appliance Labeling Rules

    Source: 45 FR 67318, Oct. 10, 1980, unless otherwise noted.



Sec.  1.92  Scope.

    The rules in this subpart apply to and govern proceedings for the 
assessment of civil penalties for the violation of section 332 of the 
Energy Policy and Conservation Act, 42 U.S.C. 6302, and the Commission's 
Rules on Labeling and Advertising of Consumer Appliances, 16 CFR part 
305, promulgated under sections 324 and 326 of the Energy Policy and 
Conservation Act, 42 U.S.C. 6294 and 6296.



Sec.  1.93  Notice of proposed penalty.

    (a) Notice. Before issuing an order assessing a civil penalty under 
this subpart against any person, the Commission shall provide to such 
person notice of the proposed penalty. This notice shall:
    (1) Inform such person of the opportunity to elect in writing within 
30 days of receipt of the notice of proposed penalty to have procedures 
of Sec.  1.95 (in lieu of those of Sec.  1.94) apply with respect to 
such assessment; and
    (2) Include a copy of a proposed complaint conforming to the 
provision of Sec.  3.11(b) (1) and (2) of the Commission's Rules of 
Practice, or a statement of the material facts constituting the alleged 
violation and the legal basis for the proposed penalty; and
    (3) Include the amount of the proposed penalty; and
    (4) Include a statement of the procedural rules that the Commission 
will follow if respondent elects to proceed under Sec.  1.94 unless the 
Commission chooses to follow subparts B, C, D, E, and F of part 3 of 
this chapter.
    (b) Election. Within 30 days of receipt of the notice of proposed 
penalty, the respondent shall, if it wishes to elect to have the 
procedures of Sec.  1.95 apply, notify the Commission of the election in 
writing. The notification, to be filed in accordance with Sec.  4.2 of 
this chapter, may include any factual or legal reasons for which the 
proposed assessment order should not issue, should be reduced in amount, 
or should otherwise be modified.



Sec.  1.94  Commission proceeding to assess civil penalty.

    If the respondent fails to elect to have the procedures of Sec.  
1.95 apply, the Commission shall determine whether to issue a complaint 
and thereby commence an adjudicative proceeding in conformance with 
section 333(d)(2)(A) of the Energy Policy and Conservation Act, 42 
U.S.C. 6303(d)(2)(A). If the Commission votes to issue a complaint, the 
proceeding shall be conducted in accordance with subparts B, C, D, E and 
F of part 3 of this chapter, unless otherwise ordered in the notice of 
proposed penalty. In assessing a penalty, the Commission shall take into 
account the factors listed in Sec.  1.97.



Sec.  1.95  Procedures upon election.

    (a) After receipt of the notification of election to apply the 
procedures of this section pursuant to Sec.  1.93, the Commission shall 
promptly assess such penalty as it deems appropriate, in accordance with 
Sec.  1.97.
    (b) If the civil penalty has not been paid within 60 calendar days 
after the assessment order has been issued under paragraph (a) of this 
section, the General Counsel, unless otherwise directed,

[[Page 31]]

shall institute an action in the appropriate district court of the 
United States for an order enforcing the assessment of the civil 
penalty.
    (c) Any election to have this section apply may not be revoked 
except with the consent of the Commission.



Sec.  1.96  Compromise of penalty.

    The Commission may compromise any penalty or proposed penalty at any 
time, with leave of court when necessary, taking into account the nature 
and degree of violation and the impact of a penalty upon a particular 
respondent.



Sec.  1.97  Amount of penalty.

    All penalties assessed under this subchapter shall be in the amount 
per violation as described in section 333(a) of the Energy Policy and 
Conservation Act, 42 U.S.C. 6303(a), adjusted for inflation pursuant to 
Sec.  1.98, unless the Commission otherwise directs. In considering the 
amount of penalty, the Commission shall take into account:
    (a) Respondent's size and ability to pay;
    (b) Respondent's good faith;
    (c) Any history of previous violations;
    (d) The deterrent effect of the penalty action;
    (e) The length of time involved before the Commission was made aware 
of the violation;
    (f) The gravity of the violation, including the amount of harm to 
consumers and the public caused by the violation; and
    (g) Such other matters as justice may require.

[32 FR 8444, June 13, 1967, as amended at 61 FR 54548, Oct. 21, 1996]



 Subpart L_Civil Penalty Adjustments Under the Federal Civil Penalties 
  Inflation Adjustment Act of 1990, as Amended by the Debt Collection 
                         Improvement Act of 1996

    Authority: 28 U.S.C. 2461 note.

    Source: 61 FR 54549, Oct. 21, 1996, unless otherwise noted.



Sec.  1.98   Adjustment of civil monetary penalty amounts.

    This section makes inflation adjustments in the dollar amounts of 
civil monetary penalties provided by law within the Commission's 
jurisdiction. The following civil penalty amounts apply to violations 
occurring after November 20, 2000:
    (a) Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1)--
$11,000;
    (b) Section 11(1) of the Clayton Act, 15 U.S.C. 21(1)--$5,500;
    (c) Section 5(1) of the FTC Act, 15 U.S.C. 45(1)--$11,000;
    (d) Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A)--
$11,000;
    (e) Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B)--
$11,000;
    (f) Section 10 of the FTC Act, 15 U.S.C. 50--$110;
    (g) Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 
65--$110;
    (h) Section 6(b) of the Wool Products Labeling Act, 15 U.S.C. 
68d(b)--$110;
    (i) Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 
69a(e)--$110;
    (j) Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 
69f(d)(2)--$110;
    (k) Section 333(a) of the Energy Policy and Conservation Act, 42 
U.S.C. 6303(a)--$110;
    (l) Sections 525(a) and (b) of the Energy Policy and Conservation 
Act, 42 U.S.C. 6395(a) and (b)--$5,500 and $11,000, respectively; and
    (m) Civil monetary penalties authorized by reference to the Federal 
Trade Commission Act under any other provision of law within the 
jurisdiction of the Commission--refer to the amounts set forth in 
paragraphs (c), (d), (e) and (f) of this section, as applicable.

[65 FR 69666, Nov. 20, 2000]



 Subpart M_Submissions Under the Small Business Regulatory Enforcement 
                              Fairness Act

    Authority: 5 U.S.C. 801-804.

[[Page 32]]



Sec.  1.99  Submission of rules, guides, interpretations, and policy 
statements to Congress and the Comptroller General.

    Whenever the Commission issues or substantively amends a rule or 
industry guide or formally adopts an interpretation or policy statement 
that constitutes a ``rule'' within the meaning of 5 U.S.C. 804(3), a 
copy of the final rule, guide, interpretation or statement, together 
with a concise description, the proposed effective date, and a statement 
of whether the rule, guide, interpretation or statement is a ``major 
rule'' within the meaning of 5 U.S.C. 804(2), will be transmitted to 
each House of Congress and to the Comptroller General. The material 
transmitted to the Comptroller General will also include any additional 
relevant information required by 5 U.S.C. 801(a)(1)(B). This provision 
generally applies to rules issued or substantively amended pursuant to 
Sec.  1.14(c), Sec.  1.15(a), Sec.  1.19, or Sec.  1.26(d); industry 
guides issued pursuant to Sec.  1.6; interpretations and policy 
statements formally adopted by the Commission; and any rule of agency 
organization, practice or procedure that substantially affects the 
rights or obligations of non-agency parties.

[63 FR 36340, July 8, 1998]



PART 2_NONADJUDICATIVE PROCEDURES--Table of Contents




        Subpart A_Inquiries; Investigations; Compulsory Processes

Sec.
2.1 How initiated.
2.2 Request for Commission action.
2.3 Policy as to private controversies.
2.4 Investigational policy.
2.5 By whom conducted.
2.6 Notification of purpose.
2.7 Compulsory process in investigations.
2.8 Investigational hearings.
2.8A Withholding requested material.
2.9 Rights of witnesses in investigations.
2.10 Depositions.
2.11 Orders requiring access.
2.12 Reports.
2.13 Noncompliance with compulsory processes.
2.14 Disposition.
2.15 Orders requiring witnesses to testify or provide other information 
          and granting immunity.
2.16 Custodians.

   Subpart B_Petitions Filed Under Section 7A of the Clayton Act, as 
     Amended, for Review of Requests for Additional Information or 
                          Documentary Material

2.20 Petitions for review of requests for additional information or 
          documentary material.

                    Subpart C_Consent Order Procedure

2.31 Opportunity to submit a proposed consent order.
2.32 Agreement.
2.33 Compliance procedure.
2.34 Disposition.

                     Subpart D_Reports of Compliance

2.41 Reports of compliance.

                      Subpart E_Requests to Reopen

2.51 Requests to reopen.

    Authority: 15 U.S.C. 46, unless otherwise noted.



        Subpart A_Inquiries; Investigations; Compulsory Processes



Sec.  2.1  How initiated.

    Commission investigations and inquiries may be originated upon the 
request of the President, Congress, governmental agencies, or the 
Attorney General; upon referrals by the courts; upon complaint by 
members of the public; or by the Commission upon its own initiative. The 
Commission has delegated to the Director, Deputy Directors, and 
Assistant Directors of the Bureau of Competition, the Director, Deputy 
Directors, and Associate Directors of the Bureau of Consumer Protection 
and, the Regional Directors and Assistant Regional Directors of the 
Commission's regional offices, without power of redelegation, limited 
authority to initiate investigations. The Director of the Bureau of 
Competition has also been delegated, without power of redelegation, 
authority to open investigations in response to requests pursuant to an 
agreement under the International Antitrust Enforcement Assistance Act, 
15 U.S.C. 6201 et seq., if the requests do not ask the Commission to use 
process. Before responding to such a request, the Bureau Director shall 
transmit the proposed response to the

[[Page 33]]

Secretary and the Secretary shall notify the Commission of the proposed 
response. If no Commissioner objects within three days following the 
Commission's receipt of such notification, the Secretary shall inform 
the Bureau Director that he or she may proceed.

[48 FR 41374, Sept. 15, 1983, as amended at 50 FR 53304, Dec. 31, 1985; 
65 FR 67259, Nov. 9, 2000]



Sec.  2.2  Request for Commission action.

    (a) Any individual, partnership, corporation, association, or 
organization may request the Commission to institute an investigation in 
respect to any matter over which the Commission has jurisdiction.
    (b) Such request should be in the form of a signed statement setting 
forth the alleged violation of law with such supporting information as 
is available, and the name and address of the person or persons 
complained of. No forms or formal procedures are required.
    (c) The person making the request is not regarded as a party to any 
proceeding which might result from the investigation.
    (d) It is the general Commission policy not to publish or divulge 
the name of an applicant or complaining party except as required by law 
or by the Commission's rules. Where a complaint is by a consumer or 
consumer representative concerning a specific consumer product or 
service, the Commission, in the course of a referral of the complaint or 
of an investigation, may disclose the identity of the complainant or 
complainants. In referring any such consumer complaint, the Commission 
specifically retains its right to take such action as it deems 
appropriate in the public interest and under any of the statutes which 
it administers.

[32 FR 8446, June 13, 1967, as amended at 35 FR 10146, June 20, 1970]



Sec.  2.3  Policy as to private controversies.

    The Commission acts only in the public interest and does not 
initiate an investigation or take other action when the alleged 
violation of law is merely a matter of private controversy and does not 
tend adversely to affect the public.

[32 FR 8446, June 13, 1967]



Sec.  2.4  Investigational policy.

    The Commission encourages voluntary cooperation in its 
investigations. Where the public interest requires, however, the 
Commission may, in any matter under investigation adopt a resolution 
authorizing the use of any or all of the compulsory processes provided 
for by law.

[45 FR 36341, May 29, 1980]



Sec.  2.5  By whom conducted.

    Inquiries and investigations are conducted under the various 
statutes administered by the Commission by Commission representatives 
designated and duly authorized for the purpose. Such representatives are 
``examiners'' or ``Commission investigators'' within the meaning of the 
Federal Trade Commission Act and are authorized to exercise and perform 
the duties of their office in accordance with the laws of the United 
States and the regulations of the Commission. Included among such duties 
is the administration of oaths and affirmations in any matter under 
investigation by the Commission.

[45 FR 36341, May 29, 1980]



Sec.  2.6  Notification of purpose.

    Any person under investigation compelled or requested to furnish 
information or documentary evidence shall be advised of the purpose and 
scope of the investigation and of the nature of the conduct constituting 
the alleged violation which is under investigation and the provisions of 
law applicable to such violation.

[46 FR 26290, May 12, 1981; 46 FR 27634, May 21, 1981]



Sec.  2.7  Compulsory process in investigations.

    (a) In general. The Commission or any member thereof may, pursuant 
to a Commission resolution, issue a subpoena or a civil investigative 
demand directing the person named therein to appear before a designated 
representative at a designated time and place to

[[Page 34]]

testify or to produce documentary evidence, or both, or, in the case of 
a civil investigative demand, to provide a written report or answers to 
questions relating to any matter under investigation by the Commission. 
Material for which a civil investigative demand has been issued shall be 
made available for inspection and copying at the principal place of 
business of the person or at such other place or in such other manner as 
the person and the custodian designated pursuant to Sec.  2.16 agree.
    (b) Civil investigative demands. Civil investigative demands shall 
be the only form of compulsory process issued in investigations with 
respect to unfair or deceptive acts or practices within the meaning of 
FTC Act section 5(a)(1).
    (1) Civil investigative demands for the production of documentary 
material shall describe each class of material to be produced with such 
definiteness and certainty as to permit such material to be fairly 
identified, prescribe a return date or dates which will provide a 
reasonable period of time within which the material so demanded may be 
assembled and made available for inspection and copying or reproduction, 
and identify the custodian to whom such material shall be made 
available. Production of documentary material in response to a civil 
investigative demand shall be made in accordance with the procedures 
prescribed by section 20(c)(11) of the Federal Trade Commission Act.
    (2) Civil investigative demands for tangible things will describe 
each class of tangible things to be produced with such definiteness and 
certainty as to permit such things to be fairly identified, prescribe a 
return date or dates which will provide a reasonable period of time 
within which the things so demanded may be assembled and submitted, and 
identify the custodian to whom such things shall be submitted. 
Submission of tangible things in response to a civil investigative 
demand shall be made in accordance with the procedures prescribed by 
section 20(c)(12) of the Federal Trade Commission Act.
    (3) Civil investigative demands for written reports or answers to 
questions shall propound with definiteness and certainty the reports to 
be produced or the questions to be answered, prescribe a date or dates 
at which time written reports or answers to questions shall be 
submitted, and identify the custodian to whom such reports or answers 
shall be submitted. Response to a civil investigative demand for a 
written report or answers to questions shall be made in accordance with 
the procedures prescribed by section 20(c)(13) of the Federal Trade 
Commission Act.
    (4) Civil investigative demands for the giving of oral testimony 
shall prescribe a date, time, and place at which oral testimony shall be 
commenced, and identify a Commission investigator who shall conduct the 
investigation and the custodian to whom the transcript of such 
investigation shall be submitted. Oral testimony in response to a civil 
investigative demand shall be taken in accordance with the procedures 
prescribed by section 20(c)(14) of the Federal Trade Commission Act.
    (c) The Bureau Director, Deputy Directors and Assistant Directors of 
the Bureaus of Competition and Economics, the Director, Deputy Directors 
and Associate Directors of the Bureau of Consumer Protection, Regional 
Directors, and Assistant Regional Directors, are authorized to negotiate 
and approve the terms of satisfactory compliance with subpoenas and 
civil investigative demands and, for good cause shown, may extend the 
time prescribed for compliance. Specifically, the subpoena power 
conferred by Section 329 of the Energy Policy and Conservation Act (42 
U.S.C. 6299) is included within this delegation.
    (d) Petitions to limit or quash--(1) General. Any petition to limit 
or quash any investigational subpoena or civil investigative demand 
shall be filed with the Secretary of the Commission within twenty (20) 
days after service of the subpoena or civil investigative demand, or, if 
the return date is less than twenty (20) days after service, prior to 
the return date. Such petition shall set forth all assertions of 
privilege or other factual and legal objections to the subpoena or civil 
investigative demand, including all appropriate arguments, affidavits 
and other supporting documentation.
    (2) Statement. Each petition shall be accompanied by a signed 
statement

[[Page 35]]

representing that counsel for the petitioner has conferred with counsel 
for the Commission in an effort in good faith to resolve by agreement 
the issues raised by the petition and has been unable to reach such an 
agreement. If some of the matters in controversy have been resolved by 
agreement, the statement shall specify the matters so resolved and the 
matters remaining unresolved. The statement shall recite the date, time, 
and place of each such conference between counsel, and the names of all 
parties participating in each such conference.
    (3) Extensions of time. Bureau Directors, Deputy Directors, and 
Assistant Directors in the Bureaus of Competition and Economics, the 
Bureau Director, Deputy Directors and Associate Directors in the Bureau 
of Consumer Protection, Regional Directors and Assistant Regional 
Directors are delegated, without power of redelegation, the authority to 
rule upon requests for extensions of time within which to file such 
petitions.
    (4) Disposition. A Commissioner, to be designated by the Chairman, 
is delegated, without power of redelegation, the authority to rule upon 
petitions to limit or quash an investigational subpoena or civil 
investigative demand, but the designated Commissioner may, in his or her 
sole discretion, refer a petition to the full Commission for 
determination.
    (e) Stay of compliance period. The timely filing of a petition to 
limit or quash any investigational subpoena or civil investigative 
demand shall stay the time permitted for compliance with the portion 
challenged. If the petition is denied in whole or in part, the ruling 
will specify a new return date.
    (f) Review. Any petitioner, within three days after service of a 
ruling by the designated Commissioner denying all or a portion of the 
relief requested in its petition, may file with the Secretary of the 
Commission a request that the full Commission review the ruling. The 
timely filing of such a request shall not stay the return date specified 
in the ruling, unless otherwise specified by the Commission.
    (g) Public disclosure. All petitions to limit or quash 
investigational subpoenas or civil investigative demands and the 
responses thereto are part of the public records of the Commission, 
except for information exempt from disclosure under Sec.  4.10(a) of 
this chapter.

[45 FR 36342, May 29, 1980, as amended at 46 FR 26290, May 12, 1981; 48 
FR 41375, Sept. 15, 1983; 49 FR 6089, Feb. 17, 1984; 50 FR 42672, Oct. 
22, 1985; 60 FR 37747, July 21, 1995]



Sec.  2.8  Investigational hearings.

    (a) Investigational hearings, as distinguished from hearings in 
adjudicative proceedings, may be conducted in the course of any 
investigation undertaken by the Commission, including rulemaking 
proceedings under subpart B of part 1 of this chapter, inquiries 
initiated for the purpose of determining whether or not a respondent is 
complying with an order of the Commission or the manner in which decrees 
in suits brought by the United States under the antitrust laws are being 
carried out, the development of facts in cases referred by the courts to 
the Commission as a master in chancery, and investigations made under 
section 5 of the Export Trade Act.
    (b) Investigational hearings shall be conducted by any Commission 
member, examiner, attorney, investigator, or other person duly 
designated under the FTC Act, for the purpose of hearing the testimony 
of witnesses and receiving documents and other data relating to any 
subject under investigation. Such hearings shall be stenographically 
reported and a transcript thereof shall be made a part of the record of 
the investigation.
    (c) Unless otherwise ordered by the Commission, investigational 
hearings shall not be public. In investigational hearings conducted 
pursuant to a civil investigative demand for the giving of oral 
testimony, the Commission investigators shall exclude from the hearing 
room all other persons except the person being examined, his counsel, 
the officer before whom the testimony is to be taken, and the 
stenographer recording such testimony. A copy of the transcript shall 
promptly be forwarded by the Commission investigator to the custodian 
designated in Sec.  2.16.

[32 FR 8446, June 13, 1967, as amended at 45 FR 36342, May 29, 1980; 61 
FR 50645, Sept. 26, 1996]

[[Page 36]]



Sec.  2.8A  Withholding requested material.

    (a) Any person withholding material responsive to an investigational 
subpoena or civil investigative demand issued pursuant to Sec.  2.7, an 
access order issued pursuant to Sec.  2.11, an order to file a report 
issued pursuant to Sec.  2.12, or any other request for production of 
material issued under this part, shall assert a claim of privilege or 
any similar claim not later than the date set for the production of 
material. Such person shall, if so directed in the subpoena, civil 
investigative demand or other request for production, submit, together 
with such claim, a schedule of the items withheld which states 
individually as to each such item the type, specific subject matter, and 
date of the item; the names, addresses, positions, and organizations of 
all authors and recipients of the item; and the specific grounds for 
claiming that the item is privileged.
    (b) A person withholding material solely for reasons described in 
Sec.  2.8A(a) shall comply with the requirements of that subsection in 
lieu of filing a motion to limit or quash compulsory process.

(Sec. 5, 38 Stat. 719 as amended (15 U.S.C. 45))

[44 FR 54042, Sept. 18, 1979, as amended at 45 FR 36342, May 29, 1980]



Sec.  2.9  Rights of witnesses in investigations.

    (a) Any person compelled to submit data to the Commission or to 
testify in an investigational hearing shall be entitled to retain a copy 
or, on payment of lawfully prescribed costs, procure a copy of any 
document submitted by him and of his own testimony as stenographically 
reported, except that in a nonpublic hearing the witness may for good 
cause be limited to inspection of the official transcript of his 
testimony. Where the investigational hearing has been conducted pursuant 
to a civil investigative demand issued under section 20 of the Federal 
Trade Commission Act, upon completion of transcription of the testimony 
of the witness, the witness shall be offered an opportunity to read the 
transcript of his testimony. Any changes in form or substance which the 
witness desires to make shall be entered and identified upon the 
transcript by the Commission investigator with a statement of the 
reasons given by the witness for making such changes. The transcript 
shall then be signed by the witness unless the witnesss cannot be found, 
is ill, waives in writing his right to signature or refuses to sign. If 
the transcript is not signed by the witness within thirty days of his 
being afforded a reasonable opportunity to review it, the Commission 
investigator shall take the actions prescribed by section 
20(c)(12)(E)(ii) of the Federal Trade Commission Act.
    (b) Any witness compelled to appear in person in an investigational 
hearing may be accompanied, represented, and advised by counsel as 
follows:
    (1) Counsel for a witness may advise the witness, in confidence and 
upon the initiative of either counsel or the witness, with respect to 
any question asked of the witness. If the witness refuses to answer a 
question, then counsel may briefly state on the record if he has advised 
the witness not to answer the question and the legal grounds for such 
refusal.
    (2) Where it is claimed that the testimony or other evidence sought 
from a witness is outside the scope of the investigation, or that the 
witness is privileged to refuse to answer a question or to produce other 
evidence, the witness or counsel for the witness may object on the 
record to the question or requirement and may state briefly and 
precisely the ground therefor. The witness and his counsel shall not 
otherwise object to or refuse to answer any question, and they shall not 
otherwise interrupt the oral examination.
    (3) Any objections made under the rules in this part will be treated 
as continuing objections and preserved throughout the further course of 
the hearing without the necessity for repeating them as to any similar 
line of inquiry. Cumulative objections are unnecessary. Repetition of 
the grounds for any objection will not be allowed.
    (4) Counsel for a witness may not, for any purpose or to any extent 
not allowed by paragraphs (b) (1) and (2) of this section, interrupt the 
examination of the witness by making any objections or statements on the 
record. Petitions challenging the Commission's authority to conduct the 
investigation

[[Page 37]]

or the sufficiency or legality of the subpoena or civil investigative 
demand must have been addressed to the Commission in advance of the 
hearing. Copies of such petitions may be filed as part of the record of 
the investigation with the person conducting the investigational 
hearing, but no arguments in support thereof will be allowed at the 
hearing.
    (5) Following completion of the examination of a witness, counsel 
for the witness may on the record request the person conducting the 
investigational hearing to permit the witness of clarify any of his or 
her answers. The grant or denial of such request shall be within the 
sole discretion of the person conducting the hearing.
    (6) The person conducting the hearing shall take all necessary 
action to regulate the course of the hearing to avoid delay and to 
prevent or restrain disorderly, dilatory, obstructionist, or 
contumacious conduct, or contemptuous language. Such person shall, for 
reasons stated on the record, immediately report to the Commission any 
instances where an attorney has allegedly refused to comply with his or 
her directions, or has allegedly engaged in disorderly, dilatory, 
obstructionist, or contumacious conduct, or contemptuous language in the 
course of the hearing. The Commission, acting pursuant to Sec.  4.1(e) 
of this chapter, will thereupon take such further action, if any, as the 
circumstances warrant, including suspension or disbarment of the 
attorney from further practice before the Commission or exclusion from 
further participation in the particular investigation.

(18 U.S.C. 6002, 6004)

[32 FR 8446, June 13, 1967, as amended at 45 FR 36343, May 29, 1980; 45 
FR 39244, June 10, 1980; 46 FR 26290, May 12, 1981; 50 FR 53304, Dec. 
31, 1985; 61 FR 50645, Sept. 26, 1996]



Sec.  2.10  Depositions.

    In investigations other than those conducted under section 20 of the 
Federal Trade Commission Act, the Commission may order testimony to be 
taken by deposition at any stage of such investigation. Such depositions 
may be taken before any person having power to administer oaths who may 
be designated by the Commission. The testimony shall be reduced to 
writing by the person taking the deposition, or under his direction, and 
shall then be subscribed to by the deponent. Any person may be compelled 
to appear and be deposed and to produce documentary evidence in the same 
manner as witnesses may be compelled to appear and testify and produce 
documentary evidence as provided in Sec. Sec.  2.7 through 2.9.

[45 FR 36343, May 29, 1980, as amended at 50 FR 53304, Dec. 31, 1985]



Sec.  2.11  Orders requiring access.

    (a) In investigations other than those conducted under section 20 of 
the Federal Trade Commission Act, the Commission may issue an order 
requiring any person, partnership or corporation being investigated to 
grant access to files for the purpose of examination and the right to 
copy any documentary evidence. The Directors, Deputy Directors and 
Assistant Directors of the Bureaus of Competition and Economics, the 
Director, Deputy Directors and Associate Directors of the Bureau of 
Consumer Protection, the Regional Directors, and Assistant Regional 
Directors of the Commission's regional offices, pursuant to delegation 
of authority by the Commission, without power of redelegation, are 
authorized, for good cause shown, to extend the time prescribed for 
compliance with orders requiring access issued during the investigation 
of any matter.
    (b) Any petition to limit or quash an order requiring access shall 
be filed with the Secretary of the Commission within twenty (20) days 
after service of the order, or, if the date for compliance is less than 
twenty (20) days after service of the order, then before the return 
date. Such petition shall set forth all assertions of privilege or other 
factual and legal objections to the order requiring access, including 
all appropriate arguments, affidavits and other supporting 
documentation. All petitions to limit or quash orders requiring access 
shall be ruled upon by the Commission itself, but the above-designated 
Directors, Deputy Directors, Assistant Directors, Associate Directors, 
Regional Directors and Assistant

[[Page 38]]

Regional Directors are delegated, without power of redelegation, the 
authority to rule upon motions for extensions of time within which to 
file petitions to limit or quash orders requiring access.
    (c) The timely filing of any petition to limit or quash such an 
order shall stay the requirement of compliance if the Commission has not 
ruled upon the motion by the date of compliance. If it rules on or 
subsequent to the date required for compliance and its ruling denies the 
petition in whole or in part, the Commission shall specify a new date of 
compliance.
    (d) All petitions to limit or quash orders requiring access, and the 
Commission's responses thereto, are part of the public records of the 
Commission, except for information exempt from disclosure under Sec.  
4.10(a) of this chapter.

[46 FR 26290, May 12, 1981, as amended at 48 FR 41375, Sept. 15, 1983]



Sec.  2.12  Reports.

    (a) In investigations other than those covered by section 20 of the 
Federal Trade Commission Act the Commission may issue an order requiring 
a person, partnership, or corporation to file a report or answers in 
writing to specific questions relating to any matter under 
investigation, study or survey, or under any of the Commission's 
reporting programs.
    (b) The Directors, Deputy Directors and Assistant Directors of the 
Bureaus of Competition and Economics, the Director, Deputy Directors and 
Associate Directors of the Bureau of Consumer Protection, and the 
Regional Directors and Assistant Regional Directors of the Commission's 
regional offices, pursuant to delegation of authority by the Commission, 
without power of redelegation, are authorized, for good cause shown, to 
extend the time prescribed for compliance with orders requiring reports 
or answers to questions issued during the investigation, study or survey 
of any matter or in connection with any of the Commission's reporting 
programs.
    (c) Any petition to limit or quash an order requiring a report or 
answer to specific questions shall be filed with the Secretary of the 
Commission within twenty (20) days after service of the order, or, if 
the date for compliance is less than twenty (20) days after service of 
the order, then before the return date. Such petition shall set forth 
all assertions of privilege or other factual and legal objections to the 
order requiring a report or answer to specific questions, including all 
appropriate arguments, affidavits and other supporting documentation. 
All petitions to limit or quash orders requiring reports or answers to 
questions shall be ruled upon by the Commission itself, but the above-
designated Directors, Deputy Directors, Assistant Directors, Associate 
Directors, Regional Directors and Assistant Regional Directors are 
delegated, without power of redelegation, the authority to rule upon 
motions for extensions of time within which to file petitions to limit 
or quash orders requiring reports or answers to questions.
    (d) Except as otherwise provided by the Commission, the timely 
filing of any petition to limit or quash such an order shall stay the 
requirement of return on the portion challenged if the Commission has 
not ruled upon the petition by the return date. If it rules on or 
subsequent to the return date and its ruling denies the petition in 
whole or in part, the Commission shall specify a new return date.
    (e) All petitions to limit or quash orders requiring a report or 
answers to specific questions, and the Commission's responses thereto, 
are part of the public records of the Commission, except for information 
exempt from disclosure under Sec.  4.10(a) of this chapter.

[41 FR 54485, Dec. 14, 1976, as amended at 45 FR 36343, May 29, 1980; 46 
FR 26290, May 12, 1981; 48 FR 41375, Sept. 15, 1983; 50 FR 53304, Dec. 
31, 1985]



Sec.  2.13  Noncompliance with compulsory processes.

    (a) In cases of failure to comply with Commission compulsory 
processes, appropriate action may be initiated by the Commission or the 
Attorney General, including actions for enforcement, forfeiture, or 
penalties or criminal actions.
    (b) The General Counsel, pursuant to delegation of authority by the 
Commission, without power of redelegation, is authorized:

[[Page 39]]

    (1) To institute, on behalf of the Commission, an enforcement 
proceeding in connection with the failure or refusal of a person, 
partnership, or corporation to comply with, or to obey, a subpoena, or 
civil investigative demand if the return date or any extension thereof 
has passed;
    (2) To approve and have prepared and issued, in the name of the 
Commission when deemed appropriate by the General Counsel, a notice of 
default in connection with the failure of a person, partnership, or 
corporation to timely file a report pursuant to section 6(b) of the 
Federal Trade Commission Act, if the return date or any extension 
thereof has passed;
    (3) To institute, on behalf of the Commission, an enforcement 
proceeding and to request, on behalf of the Commission, the institution, 
when deemed appropriate by the General Counsel, of a civil action in 
connection with the failure of a person, partnership, or corporation to 
timely file a report pursuant to an order under section 6(b) of the 
Federal Trade Commission Act, if the return date or any extension 
thereof has passed; and
    (4) To seek civil contempt in cases where a court order enforcing 
compulsory process has been violated.

[41 FR 54485, Dec. 14, 1976, as amended at 45 FR 39244, June 10, 1980; 
50 FR 53304, Dec. 31, 1985]



Sec.  2.14  Disposition.

    (a) When the facts disclosed by an investigation indicate that 
corrective action is warranted, and the matter is not subject to a 
consent settlement pursuant to subpart C of this part, further 
proceedings may be instituted pursuant to the provisions of part 3 of 
this chapter.
    (b) When the facts disclosed by an investigation indicate that 
corrective action is not necessary or warranted in the public interest, 
the investigational file will be closed. The matter may be further 
investigated at any time if circumstances so warrant.
    (c) The Commission has delegated to the Director, Deputy Directors, 
and Assistant Directors of the Bureau of Competition, the Director, 
Deputy Directors and Associate Directors of the Bureau of Consumer 
Protection, and Regional Directors, without power of redelegation, 
limited authority to close investigations.

[32 FR 8446, June 13, 1967, as amended at 42 FR 42195, Aug. 22, 1977; 48 
FR 41375, Sept. 15, 1983; 50 FR 53304, Dec. 31, 1985]



Sec.  2.15  Orders requiring witnesses to testify or provide other 
information and granting immunity.

    (a) The Bureau Director, Deputy Directors, and Assistant Directors 
in the Bureaus of Competition and Economics, the Bureau Director, Deputy 
Directors and Associate Directors of the Bureau of Consumer Protection, 
Regional Directors and Assistant Regional Directors are hereby 
authorized to request, through the Commission's liaison officer, 
approval from the Attorney General for the issuance of an order 
requiring a witness to testify or provide other information granting 
immunity under title 18, section 6002, of the United States Code.
    (b) The Commission retains the right to review the exercise of any 
of the functions delegated under paragraph (a) of this section. Appeals 
to the Commission from an order requiring a witness to testify or 
provide other information will be entertained by the Commission only 
upon a showing that a substantial question is involved, the 
determination of which is essential to serve the interests of justice. 
Such appeals shall be made on the record and shall be in the form of a 
brief not to exceed fifteen (15) pages in length and shall be filed 
within five (5) days after notice of the complained of action. The 
appeal shall not operate to suspend the hearing unless otherwise 
determined by the person conducting the hearing or ordered by the 
Commission.

(18 U.S.C. 6002, 6004)

[37 FR 5016, Mar. 9, 1972, as amended at 48 FR 41375, Sept. 15, 1983; 61 
FR 50645, Sept. 26, 1996]



Sec.  2.16  Custodians.

    (a) Designation. The Commission shall designate a custodian and one 
or more deputy custodians for material to be delivered pursuant to 
compulsory process in a investigation, a purpose of which is to 
determine whether any person may have violated any provision of

[[Page 40]]

the laws administered by the Commission. The custodian shall have the 
powers and duties prescribed by section 21 of the FTC Act. Deputy 
custodians may perform all of the duties assigned to custodians. The 
appropriate Bureau Directors, Deputy Directors, Associate Directors in 
the Bureau of Consumer Protection, Assistant Directors in the Bureau of 
Competition, Regional Directors or Assistant Regional Directors shall 
take the action required by section 21(b)(7) of the FTC Act if it is 
necessary to replace a custodian or deputy custodian.
    (b) Copying of custodial documents. The custodian designated 
pursuant to section 21 of the Federal Trade Commission Act (subject to 
the general supervision of the Executive Director) may, from among the 
material submitted, select the material the copying of which is 
necessary or appropriate for the official use of the Commission, and 
shall determine, the number of copies of any such material that are to 
be reproduced. Copies of material in the physical possession of the 
custodian may be reproduced by or under the authority of an employee of 
the Commission designated by the custodian.
    (c) Material produced pursuant to the Federal Trade Commission Act, 
while in the custody of the custodian, shall be for the official use of 
the Commission in accordance with the Act; but such material shall upon 
reasonable notice to the custodian be made available for examination by 
the person who produced such material, or his duly authorized 
representative, during regular office hours established for the 
Commission.

[45 FR 36343, May 29, 1980, as amended at 46 FR 26291, May 12, 1981; 48 
FR 41376, Sept. 15, 1983; 50 FR 53305, Dec. 31, 1985]



   Subpart B_Petitions Filed Under Section 7A of the Clayton Act, as 
     Amended, for Review of Requests for Additional Information or 
                          Documentary Material

    Authority: 15 U.S.C. 18a(d), (e).



Sec.  2.20  Petitions for review of requests for additional information 
or documentary material.

    (a) For purposes of this section, ``second request'' refers to a 
request for additional information or documentary material issued under 
16 CFR 803.20.
    (b) Second request procedures--(1) Notice. Every request for 
additional information or documentary material issued under 16 CFR 
803.20 shall inform the recipient(s) of the request that the recipient 
has a right to discuss modifications or clarifications of the request 
with an authorized representative of the Commission. The request shall 
identify the name and telephone number of at least one such 
representative.
    (2) Second request conference. An authorized representative of the 
Commission shall invite the recipient to discuss the request for 
additional information or documentary material soon after the request is 
issued. At the conference, the authorized representative shall discuss 
the competitive issues raised by the proposed transaction, to the extent 
then known, and confer with the recipient about the most effective way 
to obtain information and documents relating to the competitive issues 
raised. The conference will ordinarily take place within 5 business days 
of issuance of the request, unless the recipient declines the invitation 
or requests a later date.
    (3) Modification of requests. The authorized representative shall 
modify the request for additional information or documentary material, 
or recommend such modification to the responsible Assistant Director of 
the Bureau of Competition, if he or she determines that a less 
burdensome request would be consistent with the needs of the 
investigation. A request for additional information or documentary 
material may be modified only in writing signed by the authorized 
representative.
    (4) Review of request decisions. (i) If the recipient of a request 
for additional information or documentary material believes that 
compliance with portions of the request should not be required and the 
recipient has exhausted reasonable efforts to obtain clarifications or 
modifications of the request from an

[[Page 41]]

authorized representative, the recipient may petition the General 
Counsel to consider and rule on unresolved issues. Such petition shall 
be submitted by letter to the General Counsel with a copy to the 
authorized representative who participated in the second request 
conference held under paragraph (b)(3) of this section. The petition 
shall not, without leave of the General Counsel, exceed 500 words, 
excluding any cover, table of contents, table of authorities, 
glossaries, proposed form of relief and any appendices containing only 
sections of statutes or regulations, and shall address petitioner's 
efforts to obtain modification from the authorized representative.
    (ii) Within 2 business days after receiving such a petition, the 
General Counsel shall set a date for a conference with the petitioner 
and the authorized representative.
    (iii) Such conference shall take place within 7 business days after 
the General Counsel receives the petition, unless the request recipient 
agrees to a later date or declines to attend a conference.
    (iv) Not later than 3 business days before the date of the 
conference, the petitioner and the authorized representative may each 
submit memoranda regarding the issues presented in the petition. Such 
memoranda shall not, without leave of the General Counsel, exceed 1250 
words, excluding any cover, table of contents, table of authorities, 
glossaries, proposed form of relief and appendices containing only 
sections of statutes or regulations. Such memoranda shall be delivered 
to counsel for the other participants on the same day they are delivered 
to the General Counsel.
    (v) The petitioner's memorandum shall include a concise statement of 
reasons why the request should be modified, together with proposed 
modifications, or a concise explanation why the recipient believes it 
has substantially complied with the request for additional information 
or documentary material.
    (vi) The authorized representative's memorandum shall include a 
concise statement of reasons why the petitioner's proposed modifications 
are inappropriate or a concise statement of the reasons why the 
representative believes that the petitioner has not substantially 
complied with the request for additional information and documentary 
material.
    (vii) The General Counsel shall advise the petitioner and the 
authorized representative of his or her decision within 3 business days 
following the conference.

[66 FR 8721, Feb. 1, 2001]



                    Subpart C_Consent Order Procedure



Sec.  2.31  Opportunity to submit a proposed consent order.

    (a) Where time, the nature of the proceeding, and the public 
interest permit, any individual, partnership, or corporation being 
investigated shall be afforded the opportunity to submit through the 
operating Bureau or Regional Office having responsibility in the matter 
a proposal for disposition of the matter in the form of a consent order 
agreement executed by the party being investigated and complying with 
the requirements of Sec.  2.32, for consideration by the Commission in 
connection with a proposed complaint submitted by the Commission's 
staff.
    (b) After a complaint has been issued, the consent order procedure 
described in this part will not be available except as provided in Sec.  
3.25(b).

[40 FR 15235, Apr. 4, 1975]



Sec.  2.32  Agreement.

    Every agreement in settlement of a Commission complaint shall 
contain, in addition to an appropriate proposed order, either an 
admission of the proposed findings of fact and conclusions of law 
submitted simultaneously by the Commission's staff or an admission of 
all jurisdictional facts and an express waiver of the requirement that 
the Commission's decision contain a statement of findings of fact and 
conclusions of law. Every agreement also shall waive further procedural 
steps and all rights to seek judicial review or otherwise to challenge 
or contest the validity of the order. In addition, where appropriate, 
every agreement in settlement of a Commission complaint

[[Page 42]]

challenging the lawfulness of a proposed merger or acquisition shall 
also contain a hold-separate or asset-maintenance order. The agreement 
may state that the signing thereof is for settlement purposes only and 
does not constitute an admission by any party that the law has been 
violated as alleged in the complaint. Every agreement shall provide 
that:
    (a) The complaint may be used in construing the terms of the order;
    (b) No agreement, understanding, representation, or interpretation 
not contained in the order or the aforementioned agreement may be used 
to vary or to contradict the terms of the order;
    (c) The order will have the same force and effect and may be 
altered, modified or set aside in the same manner provided by statute 
for Commission orders issued on a litigated or stipulated record;
    (d) Except as provided by order of the Commission, any order issued 
pursuant to the agreement will become final upon service;
    (e) The agreement will not become a part of the public record unless 
and until it is accepted by the Commission; and
    (f) If the Commission accepts the agreement, further proceedings 
will be governed by Sec.  2.34.

[64 FR 46268, Aug. 25, 1999]



Sec.  2.33  Compliance procedure.

    The Commission may in its discretion require that a proposed 
agreement containing an order to cease and desist be accompanied by an 
initial report signed by the respondent setting forth in precise detail 
the manner in which the respondent will comply with the order when and 
if entered. Such report will not become part of the public record unless 
and until the accompanying agreement and order are accepted by the 
Commission. At the time any such report is submitted a respondent may 
request confidentiality for any portion thereof with a precise showing 
of justification therefor as set out in Sec.  4.9(c) and the General 
Counsel or the General Counsel's designee will dispose of such requests 
in accordance with that section.

[63 FR 32977, June 17, 1998]



Sec.  2.34  Disposition.

    (a) Acceptance of proposed consent agreement. The Commission may 
accept or refuse to accept a proposed consent agreement. Except as 
otherwise provided in paragraph (c) of this section, acceptance does not 
constitute final approval, but it serves as the basis for further 
actions leading to final disposition of the matter.
    (b) Effectiveness of hold-separate or asset-maintenance order. 
Following acceptance of a consent agreement, the Commission will, if it 
deems a hold-separate or asset-maintenance order appropriate, issue a 
complaint and such an order as agreed to by the parties. Such order will 
be final upon service. The issuance of a complaint under this paragraph 
will neither commence an adjudicatory proceeding subject to part 3 of 
this chapter nor subject the consent agreement proceeding to the 
prohibitions specified in Sec.  4.7 of this chapter.
    (c) Public comment. Promptly after its acceptance of the consent 
agreement, the Commission will place the order contained in the consent 
agreement, the complaint, and the consent agreement on the public record 
for a period of 30 days, or such other period as the Commission may 
specify, for the receipt of comments or views from any interested 
person. At the same time, the Commission will place on the public record 
an explanation of the provisions of the order and the relief to be 
obtained thereby and any other information that it believes may help 
interested persons understand the order. The Commission also will 
publish the explanation in the Federal Register. The Commission retains 
the discretion to issue a complaint and a Final Decision and Order, 
incorporating the order contained in a consent agreement, in appropriate 
cases before seeking public comment. Unless directed otherwise by the 
Commission, such Decision and Order will be final upon service.
    (d) Comment on initial compliance report. If respondents have filed 
an initial report of compliance pursuant to Sec.  2.33, the Commission 
will place that report on the public record, except for portions, if 
any, granted confidential treatment pursuant to Sec.  4.9(c) of this

[[Page 43]]

chapter, with the complaint, the order, and the consent agreement.
    (e) Action following comment period. (1) Following the comment 
period, on the basis of comments received or otherwise, the Commission 
may either withdraw its acceptance of the agreement and so notify 
respondents, in which event it will take such other action as it may 
consider appropriate, or issue and serve its complaint in such form as 
the circumstances may require and its decision in disposition of the 
proceeding.
    (2) The Commission, following the comment period, may determine, on 
the basis of the comments or otherwise, that a Final Decision and Order 
that was issued in advance of the comment period should be modified. 
Absent agreement by respondents to the modifications, the Commission may 
initiate a proceeding to reopen and modify the decision and order in 
accordance with Sec.  3.72(b) of this chapter or commence a new 
administrative proceeding by issuing a complaint in accordance with 
Sec.  3.11 of this chapter.

[64 FR 46269, Aug. 25, 1999]



                     Subpart D_Reports of Compliance



Sec.  2.41  Reports of compliance.

    (a) In every proceeding in which the Commission has issued an order 
pursuant to the provisions of section 5 of the Federal Trade Commission 
Act or section 11 of the Clayton Act, as amended, and except as 
otherwise specifically provided in any such order, each respondent named 
in such order shall file with the Commission, within sixty (60) days 
after service thereof, or within such other time as may be provided by 
the order or the rules in this chapter, a report in writing, signed by 
the respondent, setting forth in detail the manner and form of his 
compliance with the order, and shall thereafter file with the Commission 
such further signed, written reports of compliance as it may require. An 
original and one copy of each such report shall be filed with the 
Secretary of the Commission, and one copy of each such report shall be 
filed with the Associate Director for Enforcement in the Bureau of 
Consumer Protection (for consumer protection orders) or with the 
Assistant Director for Compliance in the Bureau of Competition (for 
competition orders). Reports of compliance shall be under oath if so 
requested. Where the order prohibits the use of a false advertisement of 
a food, drug, device, or cosmetic which may be injurious to health 
because of results from its use under the conditions prescribed in the 
advertisement, or under such conditions as are customary or usual, or if 
the use of such advertisement is with intent to defraud or mislead, or 
in any other case where the circumstances so warrant, the order may 
provide for an interim report stating whether and how respondents intend 
to comply to be filed within ten (10) days after service of the order. 
Neither the filing of an application for stay pursuant to Sec.  3.56, 
nor the filing of a petition for judicial review, shall operate to 
postpone the time for filing a compliance report under the order or this 
section. If the Commission, or a court, determines to grant a stay of an 
order, or portion thereof, pending judicial review, or if any order 
provision is automatically stayed by statute, no compliance report shall 
be due as to those portions of the order that are stayed unless ordered 
by the court. Thereafter, as to orders, or portions thereof, that are 
stayed, the time for filing a report of compliance shall begin to run de 
novo from the final judicial determination, except that if no petition 
for certiorari has been filed following affirmance of the order of the 
Commission by a court of appeals, the compliance report shall be due the 
day following the date on which the time expires for the filing of such 
petition. Staff of the Bureaus of Competition and Consumer Protection 
will review such reports of compliance and may advise each respondent 
whether the staff intends to recommend that the Commission take any 
enforcement action. The Commission may, however, institute proceedings, 
including certification of facts to the Attorney General pursuant to the 
provisions of section 5(l) of the Federal Trade Commission Act (15 
U.S.C. 45(l)) and section 11(1) of the Clayton Act, as amended (15 
U.S.C. 21(1)), to enforce compliance with an order, without advising a 
respondent

[[Page 44]]

whether the actions set forth in a report of compliance evidence 
compliance with the Commission's order or without prior notice of any 
kind to a respondent.
    (b) The Commission has delegated to the Director, the Deputy 
Directors, and the Assistant Director for Compliance of the Bureau of 
Competition, and to the Director, the Deputy Directors, and the 
Associate Director for Enforcement of the Bureau of Consumer Protection 
the authority to monitor compliance reports and to open and close 
compliance investigations. With respect to any compliance matter which 
has received previous Commission consideration as to compliance or in 
which the Commission or any Commissioner has expressed an interest, any 
matter proposed to be closed by reason of expense of investigation or 
testing, or any matter involving substantial questions as to the public 
interest, Commission policy or statutory construction, the Bureaus shall 
submit an analysis to the Commission regarding their intended actions.
    (c) The Commission has delegated to the Director, Deputy Directors, 
and Assistant Directors of the Bureau of Competition and to the 
Director, Deputy Directors, and Associate Directors of the Bureau of 
Consumer Protection, and to the Regional Directors, the authority, for 
good cause shown, to extend the time within which reports of compliance 
with orders to cease and desist may be filed. It is to be noted, 
however, that an extension of time within which a report of compliance 
may be filed, or the filing of a report which does not evidence full 
compliance with the order, does not in any circumstances suspend or 
relieve a respondent from his obligation under the law with respect to 
compliance with such order. An order of the Commission to cease and 
desist becomes final on the date and under the conditions provided in 
the Federal Trade Commission Act and the Clayton Act. Any person, 
partnership or corporation against which an order to cease and desist 
has been issued who is not in full compliance with such order on and 
after the date provided in these statutes for the order to become final 
is in violation of such order and is subject to an immediate action for 
civil penalties. The authority under this paragraph may not be 
redelegated, except that the Associate Director for Enforcement in the 
Bureau of Consumer Protection and the Assistant Director for Compliance 
in the Bureau of Competition may each name a designee under this 
paragraph.
    (d) Any respondent subject to a Commission order may request advice 
from the Commission as to whether a proposed course of action, if 
pursued by it, will constitute compliance with such order. The request 
for advice should be submitted in writing to the Secretary of the 
Commission and should include full and complete information regarding 
the proposed course of action. On the basis of the facts submitted, as 
well as other information available to the Commission, the Commission 
will inform the respondent whether or not the proposed course of action, 
if pursued, would constitute compliance with its order. A request 
ordinarily will be considered inappropriate for such advice:
    (1) Where the course of action is already being followed by the 
requesting party;
    (2) Where the same or substantially the same course of action is 
under investigation or is or has been the subject of a current 
proceeding, order, or decree initiated or obtained by the Commission or 
another governmental agency; or
    (3) Where the proposed course of action or its effects may be such 
that an informed decision thereon cannot be made or could be made only 
after extensive investigation, clinical study, testing or collateral 
inquiry.

Furthermore, the filing of a request for advice under this paragraph 
does not in any circumstances suspend or relieve a respondent from his 
obligation under the law with respect to his compliance with the order. 
He must in any event be in full compliance on and after the date the 
order becomes final as prescribed by statute referred to in paragraph 
(b) of this section. Advice to respondents under this paragraph will be 
published by the Commission in the same manner and subject to the same 
restrictions and considerations as advisory opinions under Sec.  1.4 of 
this chapter.

[[Page 45]]

    (e) The Commission may at any time reconsider any advice given under 
this section and, where the public interest requires, rescind or revoke 
its prior advice. In such event the respondent will be given notice of 
the Commission's intent to revoke or rescind and will be given an 
opportunity to submit its views to the Commission. The Commission will 
not proceed against a respondent for violation of an order with respect 
to any action which was taken in good faith reliance upon the 
Commission's advice under this section, where all relevant facts were 
fully, completely, and accurately presented to the Commission and where 
such action was promptly discontinued upon notification of rescission or 
revocation of the Commission's advice.
    (f)(1) All applications for approval of proposed divestitures, 
acquisitions, or similar transactions subject to Commission review under 
outstanding orders shall fully describe the terms of the transaction and 
shall set forth why the transaction merits Commission approval. Such 
applications will be placed on the public record, together with any 
additional applicant submissions that the Commission directs be placed 
on the public record. The Director of the Bureau of Competition is 
delegated the authority to direct such placement.
    (2) The Commission will receive public comment on a prior approval 
application for 30 days. During the comment period, any person may file 
formal written objections or comments with the Secretary of the 
Commission, and such objections or comments shall be placed on the 
public record. In appropriate cases, the Commission may shorten, 
eliminate, extend, or reopen a comment period.
    (3) Responses to applications under this section, together with a 
statement of supporting reasons, will be published when made, together 
with responses to any public comments filed under this section.
    (4) Persons submitting information that is subject to public record 
disclosure under this section may request confidential treatment for 
that information or portions thereof in accordance with Sec.  4.9(c) and 
the General Counsel or the General Counsel's designee will dispose of 
such requests in accordance with that section. Nothing in this section 
requires that confidentiality requests be resolved prior to, or 
contemporaneously with, the disposition of the application.

[32 FR 8449, June 13, 1967]

    Editorial Note: For Federal Register citations affecting Sec.  2.41, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



                      Subpart E_Requests to Reopen



Sec.  2.51  Requests to reopen.

    (a) Scope. Any person, partnership, or corporation subject to a 
Commission decision containing a rule or order which has become 
effective, or an order to cease and desist which has become final, may 
file with the Secretary a request that the Commission reopen the 
proceeding to consider whether the rule or order, including any 
affirmative relief provision contained therein, should be altered, 
modified, or set aside in whole or in part.
    (b) Contents. A request under this section shall contain a 
satisfactory showing that changed conditions of law or fact require the 
rule or order to be altered, modified or set aside, in whole or in part, 
or that the public interest so requires.
    (1) This requirement shall not be deemed satisfied if a request is 
merely conclusory or otherwise fails to set forth by affidavit(s) 
specific facts demonstrating in detail:
    (i) The nature of the changed conditions and the reasons why they 
require the requested modifications of the rule or order; or
    (ii) The reasons why the public interest would be served by the 
modification.
    (2) Each affidavit shall set forth facts that would be admissible in 
evidence and shall show that the affiant is competent to testify to the 
matters stated therein. All information and material that the requester 
wishes the Commission to consider shall be contained in the request at 
the time of filing.
    (c) Opportunity for public comment. A request under this section 
shall be placed on the public record except for material exempt from 
public disclosure

[[Page 46]]

under rule 4.10(a). Unless the Commission determines that earlier 
disposition is necessary, the request shall remain on the public record 
for thirty (30) days after a press release on the request is issued. 
Bureau Directors are authorized to publish a notice in the Federal 
Register announcing the receipt of a request to reopen at their 
discretion. The public is invited to comment on the request while it is 
on the public record.
    (d) Determination. After the period for public comments on a request 
under this section has expired and no later than one hundred and twenty 
(120) days after the date of the filing of the request, the Commission 
shall determine whether the request complies with paragraph (b) of this 
section and whether the proceeding shall be reopened and the rule or 
order should be altered, modified, or set aside as requested. In doing 
so, the Commission may, in its discretion, issue an order reopening the 
proceeding and modifying the rule or order as requested, issue an order 
to show cause pursuant to Sec.  3.72, or take such other action as is 
appropriate: Provided, however, That any action under Sec.  3.72 or 
otherwise shall be concluded within the specified 120-day period.

(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46(g)); 80 Stat. 383, as amended, 81 
Stat. 54 (5 U.S.C. 552))

[45 FR 36344, May 29, 1980, as amended at 46 FR 26291, May 12, 1981; 47 
FR 33251, Aug. 2, 1982; 50 FR 53305, Dec. 31, 1985; 53 FR 40868, Oct. 
19, 1988; 65 FR 50637, Aug. 21, 2000]



PART 3_RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS--Table of Contents




      Subpart A_Scope of Rules; Nature of Adjudicative Proceedings

Sec.
3.1 Scope of the rules in this part.
3.2 Nature of adjudicative proceedings.

                           Subpart B_Pleadings

3.11 Commencement of proceedings.
3.11A Fast-track proceedings.
3.12 Answer.
3.13 Adjudicative hearing on issues arising in rulemaking proceedings 
          under the Fair Packaging and Labeling Act.
3.14 Intervention.
3.15 Amendments and supplemental pleadings.

Subpart C_Prehearing Procedures; Motions; Interlocutory Appeals; Summary 
                                Decisions

3.21 Prehearing procedures.
3.22 Motions.
3.23 Interlocutory appeals.
3.24 Summary decisions.
3.25 Consent agreement settlements.
3.26 Motions following denial of preliminary injunctive relief.

                 Subpart D_Discovery; Compulsory Process

3.31 General provisions.
3.32 Admissions.
3.33 Depositions.
3.34 Subpoenas.
3.35 Interrogatories to parties.
3.36 Applications for subpoenas for records, or appearances by officials 
          or employees, of governmental agencies other than the 
          Commission, and subpoenas to be served in a foreign country.
3.37 Production of documents and things; access for inspection and other 
          purposes.
3.38 Motion for order compelling disclosure or discovery; sanctions.
3.38A Withholding requested material.
3.39 Orders requiring witnesses to testify or provide other information 
          and granting immunity.
3.40 Admissibility of evidence in advertising substantiation cases.

                           Subpart E_Hearings

3.41 General rules.
3.42 Presiding officials.
3.43 Evidence.
3.44 Record.
3.45 In camera orders.
3.46 Proposed findings, conclusions, and order.

                           Subpart F_Decision

3.51 Initial decision.
3.52 Appeal from initial decision.
3.53 Review of initial decision in absence of appeal.
3.54 Decision on appeal or review.
3.55 Reconsideration.
3.56 Effective date of orders; application for stay.

Subpart G [Reserved]

                   Subpart H_Reopening of Proceedings

3.71 Authority.

[[Page 47]]

3.72 Reopening.

 Subpart I_Recovery of Awards Under the Equal Access to Justice Act in 
                         Commission Proceedings

3.81 General provisions.
3.82 Information required from applicants.
3.83 Procedures for considering applicants.

    Authority: 15 U.S.C. 46, unless otherwise noted.

    Source: 32 FR 8449, June 13, 1967, unless otherwise noted.



      Subpart A_Scope of Rules; Nature of Adjudicative Proceedings



Sec.  3.1  Scope of the rules in this part.

    The rules in this part govern procedure in adjudicative proceedings. 
It is the policy of the Commission that, to the extent practicable and 
consistent with requirements of law, such proceedings shall be conducted 
expeditiously. In the conduct of such proceedings the Administrative Law 
Judge and counsel for all parties shall make every effort at each state 
of a proceeding to avoid delay.



Sec.  3.2  Nature of adjudicative proceedings.

    Adjudicative proceedings are those formal proceedings conducted 
under one or more of the statutes administered by the Commission which 
are required by statute to be determined on the record after opportunity 
for an agency hearing. The term includes hearings upon objections to 
orders relating to the promulgation, amendment, or repeal of rules under 
sections 4, 5 and 6 of the Fair Packaging and Labeling Act and 
proceedings for the assessment of civil penalties pursuant to Sec.  1.94 
of this chapter. It does not include other proceedings such as 
negotiations for the entry of consent orders; investigational hearings 
as distinguished from proceedings after the issuance of a complaint; 
requests for extensions of time to comply with final orders or other 
proceedings involving compliance with final orders; proceedings for the 
promulgation of industry guides or trade regulation rules; proceedings 
for fixing quantity limits under section 2(a) of the Clayton Act; 
investigations under section 5 of the Export Trade Act; rulemaking 
proceedings under the Fair Packaging and Labeling Act up to the time 
when the Commission determines under Sec.  1.26(g) of this chapter that 
objections sufficient to warrant the holding of a public hearing have 
been filed; or the promulgation of substantive rules and regulations, 
determinations of classes of products exempted from statutory 
requirements, the establishment of name guides, or inspections and 
industry counseling, under sections 4(d) and 6(a) of the Wool Products 
Labeling Act of 1939, sections 7, 8(b), and 8(c) of the Fur Products 
Labeling Act, and sections 7(c), 7(d), and 12(b) of the Textile Fiber 
Products Identification Act.

[45 FR 67319, Oct. 10, 1980]



                           Subpart B_Pleadings



Sec.  3.11  Commencement of proceedings.

    (a) Complaint. Except as provided in Sec.  3.13, an adjudicative 
proceeding is commenced when an affirmative vote is taken by the 
Commission to issue a complaint.
    (b) Form of complaint. The Commission's complaint shall contain the 
following:
    (1) Recital of the legal authority and jurisdiction for institution 
of the proceeding, with specific designation of the statutory provisions 
alleged to have been violated;
    (2) A clear and concise factual statement sufficient to inform each 
respondent with reasonable definiteness of the type of acts or practices 
alleged to be in violation of the law;
    (3) Where practical, a form of order which the Commission has reason 
to believe should issue if the facts are found to be as alleged in the 
complaint; and
    (4) Notice of the time and place for hearing, the time to be at 
least thirty (30) days after service of the complaint.
    (c) Motion for more definite statement. Where the respondent makes a 
reasonable showing that it cannot frame a responsive answer based on the 
allegations contained in the complaint, the respondent may move for a 
more definite statement of the charges against

[[Page 48]]

it before filing an answer. Such a motion shall be filed within ten (10) 
days after service of the complaint and shall point out the defects 
complained of and the details desired.

[32 FR 8449, June 13, 1967, as amended at 43 FR 11978, Mar. 23, 1978; 50 
FR 53305, Dec. 31, 1985]



Sec.  3.11A  Fast-track proceedings.

    (a) Scope and applicability. This section governs the availability 
of fast-track procedures in administrative cases where the Commission 
files a collateral federal district court complaint that seeks 
preliminary injunctive relief against some or all of the conduct alleged 
in the Commission's administrative complaint. The Commission will afford 
the respondent the opportunity to elect such fast-track procedures, 
subject to the conditions set forth in paragraph (b)(1) of this section, 
in cases that the Commission designates as appropriate. In cases so 
designated, the Commission will provide written notice to each 
respondent at the time that it is served with the Commission's federal 
district court complaint for preliminary injunctive relief. Except as 
modified by this section, the rules contained in subparts A through I of 
part 3 of this chapter will govern fast-track procedures in adjudicative 
proceedings. Discovery will be governed by subpart D of this part, and 
the Administrative Law Judge may exercise his plenary authority under 
Sec.  3.42(c)(6) to establish limitations on the number of depositions, 
witnesses, or any document production.
    (b)(1) Conditions. In cases designated as appropriate by the 
Commission pursuant to paragraph (a) of this section, a respondent may 
elect fast-track procedures:
    (i) if a federal court enters a preliminary injunction against some 
or all of the conduct alleged in the Commission's administrative 
complaint; or,
    (ii) where no such injunction is entered, if the Commission 
determines that the Federal court proceeding has resulted in an 
evidentiary record that is likely materially to facilitate resolution of 
the administrative proceeding in accordance with the expedited schedule 
set forth in this section. The Commission will provide each respondent 
with written notice of any such determination.
    (2) Election. A respondent that determines to elect fast-track 
procedures shall file a notice of such election with the Secretary by 
the latest of: three days after entry of a preliminary injunction as 
described in paragraph (b)(1)(i) of this section; three days after the 
respondent is served with notice of the Commission's determination under 
paragraph (b)(1)(ii) of this section; or three days after the respondent 
is served with the Commission's administrative complaint in the 
adjudicative proceeding. In proceedings involving multiple respondents, 
the fast-track procedures set forth in this section will not apply 
unless the procedures are elected by all respondents.
    (c) Deadlines in fast-track proceedings. (1) For purposes of this 
paragraph, ``triggering event'' means the latest of: entry of a 
preliminary injunction as described in paragraph (b)(1)(i) of this 
section; service on the last respondent of notice of the Commission's 
determination under paragraph (b)(1)(ii) of this section; service on the 
last respondent of the Commission's administrative complaint in the 
adjudicative proceeding; or filing with the Secretary by the last 
respondent of a notice electing fast-track procedures.
    (2) Proceedings before the Administrative Law Judge. In fast-track 
proceedings covered by this section:
    (i) The scheduling conference required by Sec.  3.21(b) shall be 
held not later than three days after the triggering event.
    (ii) Respondent's answer shall be filed within 14 days after the 
triggering event.
    (iii) The Administrative Law Judge shall file an initial decision 
within 56 days following the conclusion of the evidentiary hearing. The 
initial decision shall be filed no later than 195 days after the 
triggering event.
    (iv) Any party wishing to appeal an initial decision to the 
Commission shall file a notice of appeal with the Secretary within three 
days after service of the initial decision. The notice shall comply with 
Sec.  3.52(a) in all other respects.

[[Page 49]]

    (v) The appeal shall be in the form of a brief, filed within 21 days 
after service of the initial decision, and shall comply with Sec.  
3.52(b) in all other respects. All issues raised on appeal shall be 
presented in the party's appeal brief.
    (vi) Within 14 days after service of the appeal brief, the appellee 
may file an answering brief, which shall comply with Sec.  3.52(c). 
Cross-appeals, as permitted in Sec.  3.52(c), may not be raised in an 
appellee's answering brief.
    (vii) Within five days after service of the appellee's answering 
brief, the appellant may file a reply brief, in accordance with Sec.  
3.52(d) in all other respects.
    (3) Proceedings before the Commission. In fast-track proceedings 
covered by this section, the Commission will issue a final order and 
opinion within 13 months after the triggering event. If the adjudicative 
proceeding is stayed pursuant to a motion filed under Sec.  3.26, the 
13-month deadline will be tolled for as long as the proceeding is 
stayed. The Commission may extend the date for issuance of the 
Commission's final order and opinion in the following circumstances: if 
necessary to permit the Commission to provide submitters of in camera 
material or information with advance notice of the Commission's 
intention to disclose all or portions of such material or information in 
the Commission's final order or opinion; or if the Commission determines 
that adherence to the 13-month deadline would result in a miscarriage of 
justice due to circumstances unforeseen at the time of respondent's 
election of fast-track procedures.

[63 FR 7527, Feb. 13, 1998]



Sec.  3.12  Answer.

    (a) Time for filing. A respondent shall file an answer within twenty 
(20) days after being served with the complaint; Provided, however, That 
the filing of a motion permitted under these Rules shall alter this 
period of time as follows, unless a different time is fixed by the 
Administrative Law Judge:
    (1) If the motion is denied, the answer shall be filed within ten 
(10) days after service of the order of denial or thirty (30) days after 
service of the complaint, whichever is later;
    (2) If a motion for more definite statement of the charges is 
granted, in whole or in part, the more definite statement of the charges 
shall be filed within ten (10) days after service of the order granting 
the motion and the answer shall be filed within ten (10) days after 
service of the more definite statement of the charges.
    (b) Content of answer. An answer shall conform to the following:
    (1) If allegations of complaint are contested. An answer in which 
the allegations of a complaint are contested shall contain:
    (i) A concise statement of the facts constituting each ground of 
defense;
    (ii) Specific admission, denial, or explanation of each fact alleged 
in the complaint or, if the respondent is without knowledge thereof, a 
statement to that effect. Allegations of a complaint not thus answered 
shall be deemed to have been admitted.
    (2) If allegations of complaint are admitted. If the respondent 
elects not to contest the allegations of fact set forth in the 
complaint, his answer shall consist of a statement that he admits all of 
the material allegations to be true. Such an answer shall constitute a 
waiver of hearings as to the facts alleged in the complaint, and 
together with the complaint will provide a record basis on which the 
Administrative Law Judge shall file an initial decision containing 
appropriate findings and conclusions and an appropriate order disposing 
of the proceeding. In such an answer, the respondent may, however, 
reserve the right to submit proposed findings and conclusions under 
Sec.  3.46 and the right to appeal the initial decision to the 
Commission under Sec.  3.52.
    (c) Default. Failure of the respondent to file an answer within the 
time provided shall be deemed to constitute a waiver of the respondent's 
right to appear and contest the allegations of the complaint and to 
authorize the Administrative Law Judge, without further notice to the 
respondent, to find the facts to be as alleged in the complaint

[[Page 50]]

and to enter an initial decision containing such findings, appropriate 
conclusions, and order.

[32 FR 8449, June 13, 1967, as amended at 50 FR 53305, Dec. 31, 1985; 61 
FR 50646, Sept. 26, 1996; 66 FR 17628, Apr. 3, 2001; 66 FR 20527, Apr. 
23, 2001]



Sec.  3.13  Adjudicative hearing on issues arising in rulemaking 
proceedings under the Fair Packaging and Labeling Act.

    (a) Notice of hearing. When the Commission, acting under Sec.  
1.26(g) of this chapter, determines that objections which have been 
filed are sufficient to warrant the holding of an adjudicative hearing 
in rulemaking proceedings under the Fair Packaging and Labeling Act, or 
when the Commission otherwise determines that the holding of such a 
hearing would be in the public interest, a hearing will be held before 
an Administrative Law Judge for the purpose of receiving evidence 
relevant and material to the issues raised by such objections or other 
issues specified by the Commission. In such case the Commission will 
publish a notice in the Federal Register containing a statement of:
    (1) The provisions of the rule or order to which objections have 
been filed;
    (2) The issues raised by the objections or the issues on which the 
Commission wishes to receive evidence;
    (3) The time and place for hearing, the time to be at least thirty 
(30) days after publication of the notice; and
    (4) The time within which, and the conditions under which, any 
person who petitioned for issuance, amendment, or repeal of the rule or 
order, or any person who filed objections sufficient to warrant the 
holding of the hearing, or any other interested person, may file notice 
of intention to participate in the proceeding.
    (b) Parties. Any person who petitions for issuance, amendment, or 
repeal of a rule or order, and any person who files objections 
sufficient to warrant the holding of a hearing, and who files timely 
notice of intention to participate, shall be regarded as a party and 
shall be individually served with any pleadings filed in the proceeding. 
Upon written application to the Administrative Law Judge and a showing 
of good cause, any interested person may be designated by the 
Administrative Law Judge as a party.

[32 FR 8449, June 13, 1967, as amended at 40 FR 33969, Aug. 13, 1975]



Sec.  3.14  Intervention.

    (a) Any individual, partnership, unincorporated association, or 
corporation desiring to intervene in an adjudicative proceeding shall 
make written application in the form of a motion setting forth the basis 
therefor. Such application shall have attached to it a certificate 
showing service thereof upon each party to the proceeding in accordance 
with the provisions of Sec.  4.4(b) of this chapter. A similar 
certificate shall be attached to the answer filed by any party, other 
than counsel in support of the complaint, showing service of such answer 
upon the applicant. The Administrative Law Judge or the Commission may 
by order permit the intervention to such extent and upon such terms as 
are provided by law or as otherwise may be deemed proper.
    (b) In an adjudicative proceeding where the complaint states that 
divestiture relief is contemplated, the labor organization[s] 
representing employees of the respondent[s] may intervene as a matter of 
right. Applications for such intervention are to be made in accordance 
with the procedures set forth in paragraph (a) of this section and must 
be filed within 60 days of the issuance of the complaint. Intervention 
as a matter of right shall be limited to the issue of the effect, if 
any, of proposed remedies on employment, with full rights of 
participation in the proceeding concerning this issue. This paragraph 
does not affect a labor organization's ability to petition for leave to 
intervene pursuant to Sec.  3.14(a).

[32 FR 8449, June 13, 1967, as amended at 46 FR 20979, Apr. 8, 1981]



Sec.  3.15  Amendments and supplemental pleadings.

    (a) Amendments--(1) By leave. If and whenever determination of a 
controversy on the merits will be facilitated thereby, the 
Administrative Law Judge may, upon such conditions as are necessary to 
avoid prejudicing the public interest and the rights of the

[[Page 51]]

parties, allow appropriate amendments to pleadings or notice of hearing: 
Provided, however, That a motion for amendment of a complaint or notice 
may be allowed by the Administrative Law Judge only if the amendment is 
reasonably within the scope of the original complaint or notice. Motions 
for other amendments of complaints or notices shall be certified to the 
Commission.
    (2) Conformance to evidence. When issues not raised by the pleadings 
or notice of hearing but reasonably within the scope of the original 
complaint or notice of hearing are tried by express or implied consent 
of the parties, they shall be treated in all respects as if they had 
been raised in the pleadings or notice of hearing; and such amendments 
of the pleadings or notice as may be necessary to make them conform to 
the evidence and to raise such issues shall be allowed at any time.
    (b) Supplemental pleadings. The Administrative Law Judge may, upon 
reasonable notice and such terms as are just, permit service of a 
supplemental pleading or notice setting forth transactions, occurrences, 
or events which have happened since the date of the pleading or notice 
sought to be supplemented and which are relevant to any of the issues 
involved.



Subpart C_Prehearing Procedures; Motions; Interlocutory Appeals; Summary 
                                Decisions



Sec.  3.21  Prehearing procedures.

    (a) Meeting of the parties before scheduling conference. An early as 
practicable before the prehearing scheduling conference described in 
paragraph (b) of this section, counsel for the parties shall meet to 
discuss the nature and basis of their claims and defenses and the 
possibilities for a prompt settlement or resolution of the case, and to 
agree, if possible, on a proposed discovery schedule, a preliminary 
estimate of the time required for the hearing, and a proposed hearing 
date, and on any other matters to be determined at the scheduling 
conference.
    (b) Scheduling conference. Not later than fourteen (14) days after 
the answer is filed by the last answering respondent, the Administrative 
Law Judge shall hold a scheduling conference. At the scheduling 
conference, counsel for the parties shall be prepared to address their 
factual and legal theories, a schedule of proceedings, possible 
limitations on discovery, and other possible agreements or steps that 
may aid in the orderly and expeditious disposition of the proceeding.
    (c) Prehearing scheduling order. (1) Not later than two (2) days 
after the scheduling conference, the Administrative Law Judge shall 
enter an order that sets forth the results of the conference and 
establishes a schedule of proceedings, including a plan of discovery, 
dates for the submission and hearing of motions, the specific method by 
which exhibits shall be numbered or otherwise identified and marked for 
the record, and the time and place of a final prehearing conference and 
of the evidentiary hearing.
    (2) The Administrative Law Judge may grant a motion to extend any 
deadline or time specified in this scheduling order only upon a showing 
of good cause. Such motion shall set forth the total period of 
extensions, if any, previously obtained by the moving party. In 
determining whether to grant the motion, the Administrative Law Judge 
shall consider any extensions already granted, the length of the 
proceedings to date, and the need to conclude the evidentiary hearing 
and render an initial decision in a timely manner. The Administrative 
Law Judge shall not rule on ex parte motions to extend the deadlines 
specified in the scheduling order, or modify such deadlines solely upon 
stipulation or agreement of counsel.
    (d) Meeting prior to final prehearing conference. Counsel for the 
parties shall meet before the final prehearing conference described in 
paragraph (e) of this section to discuss the matters set forth therein 
in preparation for the conference.
    (e) Final prehearing conference. As close to the commencement of the 
evidentiary hearing as practicable, the Administrative Law Judge shall 
hold a final prehearing conference, which counsel shall attend in 
person, to submit any proposed stipulations as to law, fact, or 
admissibility of evidence,

[[Page 52]]

exchange exhibit and witness lists, and designate testimony to be 
presented by deposition. At this conference, the Administrative Law 
Judge shall also resolve any outstanding evidentiary matters or pending 
motions (except motions for summary decision) and establish a final 
schedule for the evidentiary hearing.
    (f) Additional prehearing conferences and orders. The Administrative 
Law Judge shall hold additional prehearing and status conferences or 
enter additional orders as may be needed to ensure the orderly and 
expeditious disposition of a proceeding. Such conferences shall be held 
in person to the extent practicable.
    (g) Public access and reporting. Prehearing conferences shall be 
public unless the Administrative Law Judge determines in his or her 
discretion that the conference (or any part thereof) shall be closed to 
the public. The Administrative Law Judge shall have discretion to 
determine whether a prehearing conference shall be stenographically 
reported.

[50 FR 41487, Oct. 11, 1985, as amended at 61 FR 50646, Sept. 26, 1996; 
66 FR 17628, Apr. 3, 2001]



Sec.  3.22  Motions.

    (a) Presentation and disposition. During the time a proceeding is 
before an Administrative Law Judge, all motions therein, except those 
filed under Sec.  3.26, Sec.  3.42(g), or Sec.  4.17, shall be addressed 
to and ruled upon, if within his or her authority, by the Administrative 
Law Judge. The Administrative Law Judge shall certify to the Commission 
any motion upon which he or she has no authority to rule, accompanied by 
any recommendation that he or she may deem appropriate. Such 
recommendation may contain a proposed disposition of the motion or other 
relevant comments. The Commission may order the ALJ to submit a 
recommendation or an amplification thereof. Rulings or recommendations 
containing information granted in camera status pursuant to Sec.  3.45 
shall be filed in accordance with Sec.  3.45(f). All written motions 
shall be filed with the Secretary of the Commission, and all motions 
addressed to the Commission shall be in writing. The moving party shall 
also provide a copy of its motion to the Administrative Law Judge at the 
time the motion is filed with the Secretary.
    (b) Content. All written motions shall state the particular order, 
ruling, or action desired and the grounds therefor. They must also 
include the name, address, telephone number, fax number, and e-mail 
address (if any) of counsel and attach a draft order containing the 
proposed relief. If a party includes in a motion information that has 
been granted in camera status pursuant to Sec.  3.45(b) or is subject to 
confidentiality protections pursuant to a protective order, the party 
shall file two versions of the motion in accordance with the procedures 
set forth in Sec.  3.45(e). The party shall mark its confidential 
filings with brackets or similar conspicuous markings to indicate the 
material for which it is claiming confidential treatment. The time 
period specified by Sec.  3.22(c) within which an opposing party may 
file an answer will begin to run upon service on that opposing party of 
the confidential version of the motion.
    (c) Answers. Within ten (10) days after service of any written 
motion, or within such longer or shorter time as may be designated by 
the Administrative Law Judge or the Commission, the opposing party shall 
answer or shall be deemed to have consented to the granting of the 
relief asked for in the motion. If an opposing party includes in an 
answer information that has been granted in camera status pursuant to 
Sec.  3.45(b) or is subject to confidentiality protections pursuant to a 
protective order, the opposing party shall file two versions of the 
answer in accordance with the procedures set forth in Sec.  3.45(e). The 
moving party shall have no right to reply, except as permitted by the 
Administrative Law Judge or the Commission.
    (d) Motions for extensions. The Administrative Law Judge or the 
Commission may waive the requirements of this section as to motions for 
extensions of time; however, the Administrative Law Judge shall have no 
authority to rule on ex parte motions for extensions of time.
    (e) Rulings on motions for dismissal. When a motion to dismiss a 
complaint or for other relief is granted with the

[[Page 53]]

result that the proceeding before the Administrative Law Judge is 
terminated, the Administrative Law Judge shall file an initial decision 
in accordance with the provisions of Sec.  3.51. If such a motion is 
granted as to all charges of the complaint in regard to some, but not 
all, of the respondents, or is granted as to any part of the charges in 
regard to any or all of the respondents, the Administrative Law Judge 
shall enter his ruling on the record, in accordance with the procedures 
set forth in paragraph (a) of this section, and take it into account in 
his initial decision. When a motion to dismiss is made at the close of 
the evidence offered in support of the complaint based upon an alleged 
failure to establish a prima facie case, the Administrative Law Judge 
may defer ruling thereon until immediately after all evidence has been 
received and the hearing record is closed.
    (f) Statement. Each motion to quash filed pursuant to Sec.  3.34(c), 
each motion to compel or determine sufficiency pursuant to Sec.  
3.38(a), each motion for sanctions pursuant to Sec.  3.38(b), and each 
motion for enforcement pursuant to Sec.  3.38(c) shall be accompanied by 
a signed statement representing that counsel for the moving party has 
conferred with opposing counsel in an effort in good faith to resolve by 
agreement the issues raised by the motion and has been unable to reach 
such an agreement. If some of the matters in controversy have been 
resolved by agreement, the statement shall specify the matters so 
resolved and the matters remaining unresolved. The statement shall 
recite the date, time, and place of each such conference between 
counsel, and the names of all parties participating in each such 
conference. Unless otherwise ordered by the Administrative Law Judge, 
the statement required by this rule must be filed only with the first 
motion concerning compliance with the discovery demand at issue.

[32 FR 8449, June 13, 1967, as amended at 50 FR 42672, Oct. 22, 1985; 52 
FR 22293, June 11, 1987; 60 FR 39641, Aug. 3, 1995; 61 FR 50647, Sept. 
26, 1996; 66 FR 17628, Apr. 3, 2001]



Sec.  3.23  Interlocutory appeals.

    (a) Appeals without a determination by the Administrative Law Judge. 
The Commission may, in its discretion, entertain interlocutory appeals 
where a ruling of the Administrative Law Judge:
    (1) Requires the disclosure of rec ords of the Commission or another 
governmental agency or the appearance of an official or employee of the 
Commission or another governmental agency pursuant to Sec.  3.36, if 
such appeal is based solely on a claim of privilege: Provided, that The 
Administrative Law Judge shall stay until further order of the 
Commission the effectiveness of any ruling, whether or not appeal is 
sought, that requires the disclosure of nonpublic Commission minutes, 
Commissioner circulations, or similar documents prepared by the 
Commission, individual Commissioner, or the Office of the General 
Counsel;
    (2) Suspends an attorney from participation in a particular 
proceeding pursuant to Sec.  3.42(d); or
    (3) Grants or denies an application for intervention pursuant to the 
provisions of Sec.  3.14.

Appeal from such rulings may be sought by filing with the Commission an 
application for review, not to exceed fifteen (15) pages exclusive of 
those attachments required below, within five (5) days after notice of 
the Administrative Law Judge's ruling. Answer thereto may be filed 
within five (5) days after service of the application for review. The 
application for review should specify the person or party taking the 
appeal; should attach the ruling or part thereof from which appeal is 
being taken and any other portions of the record on which the moving 
party relies; and should specify under which provisions hereof review is 
being sought. The Commission upon its own motion may enter an order 
staying the return date of an order issued by the Administrative Law 
Judge pursuant to Sec.  3.36 or placing the matter on the Commission's 
docket for review. Any order placing the matter on the Commission's 
docket for review will set forth the scope of the review and the issues 
which will be considered and will make provision for the filing of 
briefs if deemed appropriate by the Commission.

[[Page 54]]

    (b) Appeals upon a determination by the Administrative Law Judge. 
Except as provided in paragraph (a) of this section, applications for 
review of a ruling by the Administrative Law Judge may be allowed only 
upon request made to the Administrative Law Judge and a determination by 
the Administrative Law Judge in writing, with justification in support 
thereof, that the ruling involves a controlling question of law or 
policy as to which there is substantial ground for difference of opinion 
and that an immediate appeal from the ruling may materially advance the 
ultimate termination of the litigation or subsequent review will be an 
inadequate remedy. Applications for review in writing may be filed, not 
to exceed fifteen (15) pages exclusive of those attachments required 
below, within five (5) days after notice of the Administrative Law 
Judge's determination. Additionally, the moving party is required to 
attach the ruling or part thereof from which appeal is being taken and 
any other portions of the record on which the moving party is relying. 
Answer thereto may be filed within five (5) days after service of the 
application for review. The Commission may thereupon, in its discretion, 
permit an appeal. Commission review, if permitted, will be confined to 
the application for review and answer thereto, without oral argument or 
further briefs, unless otherwise ordered by the Commission.
    (c) Proceedings not stayed. Application for review and appeal 
hereunder shall not stay proceedings before the Administrative Law Judge 
unless the Judge or the Commission shall so order.

[37 FR 5608, Mar. 17, 1972, as amended at 42 FR 31591, June 22, 1977; 42 
FR 33025, June 29, 1977; 43 FR 56902 Dec. 5, 1978; 50 FR 53305, Dec. 31, 
1985]



Sec.  3.24  Summary decisions.

    (a) Procedure. (1) Any party to an adjudicatory proceeding may move, 
with or without supporting affidavits, for a summary decision in the 
party's favor upon all or any part of the issues being adjudicated. The 
motion shall be accompanied by a separate and concise statement of the 
material facts as to which the moving party contends there is not 
genuine issue. Counsel in support of the complaint may so move at any 
time after twenty (20) days following issuance of the complaint and any 
party respondent may so move at any time after issuance of the 
complaint. Any such motion by any party, however, shall be filed in 
accordance with the scheduling order issued pursuant to Sec.  3.21, but 
in any case at least twenty (20) days before the date fixed for the 
adjudicatory hearing.
    (2) Any other party may, within ten (10) days after service of the 
motion, file opposing affidavits. The opposing party shall include a 
separate and concise statement of those material facts as to which the 
opposing party contends there exists a genuine issue for trial, as 
provided in Sec.  3.24(a)(3). The Administrative Law Judge may, in his 
discretion, set the matter for oral argument and call for the submission 
of briefs or memoranda. If a party includes in any such brief or 
memorandum information that has been granted in camera status pursuant 
to Sec.  3.45(b) or is subject to confidentiality protections pursuant 
to a protective order, the party shall file two versions of the document 
in accordance with the procedures set forth in Sec.  3.45(e). The 
decision sought by the moving party shall be rendered within thirty (30) 
days after the opposition or any final brief ordered by the 
Administrative Law Judge is filed, if the pleadings and any depositions, 
answers to interrogatories, admissions on file, and affidavits show that 
there is no genuine issue as to any material fact and that the moving 
party is entitled to such decision as a matter of law. Any such decision 
shall constitute the initial decision of the Administrative Law Judge 
and shall accord with the procedures set forth in Sec.  3.51(c). A 
summary decision, interlocutory in character and in compliance with the 
procedures set forth in Sec.  3.51(c), may be rendered on the issue of 
liability alone although there is a genuine issue as to the nature and 
extent of relief.
    (3) Affidavits shall set forth such facts as would be admissible in 
evidence and shall show affirmatively that the affiant is competent to 
testify to the matters stated therein. The Administrative Law Judge may 
permit affidavits to be supplemented or opposed

[[Page 55]]

by depositions, answers to interrogatories, or further affidavits. When 
a motion for summary decision is made and supported as provided in this 
rule, a party opposing the motion may not rest upon the mere allegations 
or denials of his pleading; his response, by affidavits or as otherwise 
provided in this rule, must set forth specific facts showing that there 
is a genuine issue of fact for trial. If no such response is filed, 
summary decision, if appropriate, shall be rendered.
    (4) Should it appear from the affidavits of a party opposing the 
motion that he cannot, for reasons stated, present by affidavit facts 
essential to justify his opposition, the Administrative Law Judge may 
refuse the application for summary decision or may order a continuance 
to permit affidavits to be obtained or depositions to be taken or 
discovery to be had or make such other order as is appropriate and a 
determination to that effect shall be made a matter of record.
    (5) If on motion under this rule a summary decision is not rendered 
upon the whole case or for all the relief asked and a trial is 
necessary, the Administrative Law Judge shall make an order specifying 
the facts that appear without substantial controversy and directing 
further proceedings in the action. The facts so specified shall be 
deemed established.
    (b) Affidavits filed in bad faith. (1) Should it appear to the 
satisfaction of the Administrative Law Judge at any time that any of the 
affidavits presented pursuant to this rule are presented in bad faith, 
or solely for the purpose of delay, or are patently frivolous, the 
Administrative Law Judge shall enter a determination to that effect upon 
the record.
    (2) If upon consideration of all relevant facts attending the 
submission of any affidavit covered by paragraph (b)(1) of this section, 
the Administrative Law Judge concludes that action by him to suspend or 
remove an attorney from the case is warranted, he shall take action as 
specified in Sec.  3.42(d). If the Administrative Law Judge concludes, 
upon consideration of all the relevant facts attending the submission of 
any affidavit covered by paragraph (b)(1) of this section, that the 
matter should be certified to the Commission for consideration of 
disciplinary action against an attorney, including reprimand, suspension 
or disbarment, the examiner shall certify the matter, with his findings 
and recommendations, to the Commission for its consideration of 
disciplinary action in the manner provided by the Commission's rules.

[35 FR 5007, Mar. 24, 1970, as amended at 50 FR 53305, Dec. 31, 1985; 52 
FR 22293, June 11, 1987; 61 FR 50647, Sept. 26, 1996; 66 FR 17628, Apr. 
3, 2001]



Sec.  3.25  Consent agreement settlements.

    (a) The Administrative Law Judge may, in his discretion and without 
suspension of prehearing procedures, hold conferences for the purpose of 
supervising negotiations for the settlement of the case, in whole or in 
part, by way of consent agreement.
    (b) A proposal to settle a matter in adjudication by consent 
agreement shall be submitted by way of a motion to withdraw the matter 
from adjudication for the purpose of considering the proposed consent 
agreement. Such motion shall be filed with the Secretary of the 
Commission, as provided in Sec.  4.2. Any such motion shall be 
accompanied by a proposed consent agreement containing a proposed order 
executed by one or more respondents and conforming to the requirements 
of Sec.  2.32; the proposed consent agreement itself, however, shall not 
be placed on the public record unless and until it is accepted by the 
Commission as provided herein. If the proposed consent agreement affects 
only some of the respondents or resolves only some of the charges in 
adjudication, the motion required by this subsection shall so state and 
shall specify the portions of the matter that the proposal would 
resolve.
    (c) If the proposed consent agreement accompanying the motion has 
also been executed by complaint counsel and approved by the appropriate 
Bureau Director, the Secretary shall issue an order withdrawing from 
adjudication those portions of the matter that the proposal would 
resolve and all proceedings before the Administrative Law Judge shall be 
stayed with respect

[[Page 56]]

to such portions, pending a determination by the Commission pursuant to 
paragraph (f) of this section.
    (d) If the proposed consent agreement accompanying the motion has 
not been executed by complaint counsel, the Administrative Law Judge may 
certify the motion and agreement to the Commission together with his 
recommendation if he determines, in writing, that there is a likelihood 
of settlement. The filing of a motion under this subsection and 
certification thereof to the Commission shall not stay proceedings 
before the Administrative Law Judge unless the Administrative Law Judge 
or the Commission shall so order. Upon certification of a motion 
pursuant to this subsection, the Commission may, if it is satisfied that 
there is a likelihood of settlement, issue an order withdrawing from 
adjudication those portions of the matter that the proposal would 
resolve, for the purpose of considering the proposed consent agreement.
    (e) The Commission will treat those portions of a matter withdrawn 
from adjudication pursuant to paragraph (c) or (d) of this section as 
being in a nonadjudicative status. Portions not so withdrawn shall 
remain in an adjudicative status.
    (f) After some or all of allegations in a matter have been withdrawn 
from adjudication, the Commission may accept the proposed consent 
agreement, reject it and return the matter or affected portions thereof 
to adjudication for further proceedings or take such other action as it 
may deem appropriate. If the agreement is accepted, it will be disposed 
of as provided in Sec.  2.34 of this chapter, except that if, following 
the public comment period provided for in Sec.  2.34, the Commission 
decides, based on comments received or otherwise, to withdraw its 
acceptance of such an agreement, it will so notify the parties and will 
return to adjudication any portions of the matter previously withdrawn 
from adjudication for further proceedings or take such other action it 
considers appropriate.
    (g) This rule will not preclude the settlement of the case by 
regular adjudicatory process through the filing of an admission answer 
or submission of the case to the Administrative Law Judge on a 
stipulation of facts and an agreed order.

[40 FR 15236, Apr. 4, 1975, as amended at 42 FR 39659, Aug. 5, 1977; 43 
FR 51758, Nov. 7, 1978; 50 FR 53305, Dec. 31, 1985; 54 FR 18885, May 3, 
1989; 61 FR 50431, Sept. 26, 1996; 61 FR 50647, Sept. 26, 1996; 64 FR 
46269, Aug. 25, 1999; 66 FR 64143, Dec. 12, 2001]



Sec.  3.26  Motions following denial of preliminary injunctive relief.

    (a) This section sets forth two procedures by which respondents may 
obtain consideration of whether continuation of an adjudicative 
proceeding is in the public interest after a court has denied 
preliminary injunctive relief in a separate proceeding brought, under 
section 13(b) of the Federal Trade Commission Act, 15 U.S.C. 53(b), in 
aid of the adjudication.
    (b) A motion under this section shall be addressed to the Commission 
and filed with the Secretary of the Commission. Such a motion must be 
filed within fourteen (14) days after:
    (1) A district court has denied preliminary injunctive relief, all 
opportunity has passed for the Commission to seek reconsideration of the 
denial or to appeal it, and the Commission has neither sought 
reconsideration of the denial nor appealed it; or
    (2) A court of appeals has denied preliminary injunctive relief.
    (c) Withdrawal from adjudication. If a court has denied preliminary 
injunctive relief to the Commission in a section 13(b) proceeding 
brought in aid of an adjudicative proceeding, respondents may move that 
the adjudicative proceeding be withdrawn from adjudication in order to 
consider whether or not the public interest warrants further litigation. 
Such a motion shall be filed by all of the respondents in the 
adjudicative proceeding. The Secretary shall issue an order withdrawing 
the matter from adjudication two days after such a motion is filed, 
except that, if complaint counsel have objected that the conditions of 
paragraph (b) of this section have not been met, the Commission shall 
determine whether to withdraw the matter from adjudication.
    (d) Consideration on the record. (1) In lieu of a motion to withdraw 
a matter from adjudication under paragraph (c)

[[Page 57]]

of this section, any respondent or respondents may file a motion under 
this paragraph to dismiss the administrative complaint on the basis that 
the public interest does not warrant further litigation after a court 
has denied preliminary injunctive relief to the Commission. Motions 
filed under this paragraph shall incorporate or be accompanied by a 
supporting brief or memorandum.
    (2) Stay. A motion under this paragraph will stay all proceedings 
before the Administrative Law Judge until such time as the Commission 
directs otherwise.
    (3) Answer. Within fourteen (14) days after service of a motion 
filed under this paragraph, complaint counsel may file an answer.
    (4) Form. Motions (including any supporting briefs and memoranda) 
and answers under this paragraph shall not exceed 30 pages if printed, 
or 45 pages if typewritten, and shall comply with the requirements of 
Sec.  3.52(e).
    (5) In camera materials. If any filing includes materials that are 
subject to confidentiality protections pursuant to an order entered in 
either the proceeding under section 13(b) or in the proceeding under 
this part, such materials shall be treated as In camera materials for 
purposes of this paragraph and the party shall file two versions of the 
document in accordance with the procedures set forth in Sec.  3.45(e). 
The time within which complaint counsel may file an answer under this 
paragraph will begin to run upon service of the in camera version of the 
motion (including any supporting briefs and memoranda).

[60 FR 39641, Aug. 3, 1995]



                 Subpart D_Discovery; Compulsory Process



Sec.  3.31  General provisions.

    (a) Discovery methods. Parties may obtain discovery by one or more 
of the following methods: Depositions upon oral examination or written 
questions; written interrogatories; production of documents or things 
for inspection and other purposes; and requests for admission. Unless 
the Administrative Law Judge orders otherwise, the frequency or sequence 
of these methods is not limited. The parties shall, to the greatest 
extent practicable, conduct discovery simultaneously; the fact that a 
party is conducting discovery shall not operate to delay any other 
party's discovery.
    (b) Initial disclosures. Complaint counsel and respondent's counsel 
shall, within five (5) days of receipt of a respondent's answer to the 
complaint and without awaiting a discovery request, provide to each 
other:
    (1) The name, and, if known, the address and telephone number of 
each individual likely to have discoverable information relevant to the 
allegations of the Commission's complaint, to the proposed relief, or to 
the defenses of the respondent, as set forth in Sec.  3.31(c)(1);
    (2) A copy of, or a description by category and location of, all 
documents, data compilations, and tangible things in the possession, 
custody, or control of the Commission or respondent(s) that are relevant 
to the allegations of the Commission's complaint, to the proposed 
relief, or to the defenses of the respondent, as set forth in Sec.  
3.31(c)(1); unless such information or materials are privileged as 
defined in Sec.  3.31(c)(2), pertain to hearing preparation as defined 
in Sec.  3.31(c)(3), pertain to experts as defined in Sec.  3.31(c)(4), 
or are obtainable from some other source that is more convenient, less 
burdensome, or less expensive. A party shall make its disclosures based 
on the information then reasonably available to it and is not excused 
from making its disclosures because it has not fully completed its 
investigation.
    (3) In addition to the disclosures required by paragraphs (b)(1) and 
(2), of this section, the parties shall disclose to each other the 
identity of any person who may be used at trial to present evidence as 
an expert. Except as otherwise stipulated or directed by the 
Administrative Law Judge, this disclosure shall, with respect to a 
witness who is retained or specially employed to provide expert 
testimony in the case or whose duties as an employee of the party 
regularly involve giving expert testimony, be accompanied by a written 
report prepared and signed by the witness. The report shall contain a

[[Page 58]]

complete statement of all opinions to be expressed and the basis and 
reasons therefor; the data or other information considered by the 
witness in forming the opinions; any exhibits to be used as a summary of 
or support for the opinions; the qualifications of the witness, 
including a list of all publications authored by the witness within the 
preceding ten years; the compensation to be paid for the study and 
testimony; and a listing of any other cases in which the witness has 
testified as an expert at trial or by deposition within the preceding 
four years. These disclosures shall be made at the times and in the 
sequence directed by the Administrative Law Judge. In the absence of 
other directions from the Administrative Law Judge or stipulation by the 
parties, the disclosures shall be made at least 90 days before the trial 
date or the date the case is to be ready for trial or, if the evidence 
is intended solely to contradict or rebut proposed expert testimony on 
the same subject matter identified by another party under this 
paragraph, within 30 days after the disclosure made by the other party.
    (c) Scope of discovery. Unless otherwise limited by order of the 
Administrative Law Judge or the Commission in accordance with these 
rules, the scope of discovery is as follows:
    (1) In general; limitations. Parties may obtain discovery to the 
extent that it may be reasonably expected to yield information relevant 
to the allegations of the complaint, to the proposed relief, or to the 
defenses of any respondent. Such information may include the existence, 
description, nature, custody, condition and location of any books, 
documents, or other tangible things and the identity and location of 
persons having any knowledge of any discoverable matter. Information may 
not be withheld from discovery on grounds that the information will be 
inadmissible at the hearing if the information sought appears reasonably 
calculated to lead to the discovery of admissible evidence. The 
frequency or extent of use of the discovery methods otherwise permitted 
under these rules shall be limited by the Administrative Law Judge if he 
determines that:
    (i) The discovery sought is unreasonably cumulative or duplicative, 
or is obtainable from some other source that is more convenient, less 
burdensome, or less expensive;
    (ii) The party seeking discovery has had ample opportunity by 
discovery in the action to obtain the information sought; or
    (iii) The burden and expense of the proposed discovery outweigh its 
likely benefit.
    (2) Privilege. The Administrative Law Judge may enter a protective 
order denying or limiting discovery to preserve the privilege of a 
witness, person, or governmental agency as governed by the Constitution, 
any applicable act of Congress, or the principles of the common law as 
they may be interpreted by the Commission in the light of reason and 
experience.
    (3) Hearing preparations: Materials. Subject to the provisions of 
paragraph (c)(4) of this section, a party may obtain discovery of 
documents and tangible things otherwise discoverable under paragraph 
(c)(1) of this section and prepared in anticipation of litigation or for 
hearing by or for another party or by or for that other party's 
representative (including the party's attorney, consultant, or agent) 
only upon a showing that the party seeking discovery has substantial 
need of the materials in the preparation of its case and that the party 
is unable without undue hardship to obtain the substantial equivalent of 
the materials by other means. In ordering discovery of such materials 
when the required showing has been made, the Administrative Law Judge 
shall protect against disclosure of the mental impressions, conclusions, 
opinions, or legal theories of an attorney or other representative of a 
party.
    (4) Hearing Preparation: Experts. (i) A party may depose any person 
who has been identified as an expert whose opinions may be presented at 
trial. If a report from the expert is required under Sec.  3.31(b)(3), 
the deposition shall not be conducted until after the report is 
provided.
    (A) A party may through interrogatories require any other party to 
identify each person whom the other party expects to call as an expert 
witness at

[[Page 59]]

hearing, to state the subject matter on which the expert is expected to 
testify, and to state the substance of the facts and opinions to which 
the expert is expected to testify and a summary of the grounds for each 
opinion.
    (B) Upon motion, the Administrative Law Judge may order further 
discovery by other means, subject to such restrictions as to scope as 
the Administrative Law Judge may deem appropriate.
    (ii) A party may discover facts known or opinions held by an expert 
who has been retained or specially employed by another party in 
anticipation of litigation or preparation for hearing and who is not 
expected to be called as a witness at hearing, only upon a showing of 
exceptional circumstances under which it is impracticable for the party 
seeking discovery to obtain facts or opinions on the same subject by 
other means.
    (d) Protective orders; order to preserve evidence. (1) The 
Administrative Law Judge may deny discovery or make any order which 
justice requires to protect a party or other person from annoyance, 
embarrassment, oppression, or undue burden or expense, or to prevent 
undue delay in the proceeding. Such an order may also be issued to 
preserve evidence upon a showing that there is substantial reason to 
believe that such evidence would not otherwise be available for 
presentation at the hearing.
    (2) [Reserved]
    (e) Supplementation of disclosures and responses. A party who has 
made an initial disclosure under Sec.  3.31(b) or responded to a request 
for discovery with a disclosure or response is under a duty to 
supplement or correct the disclosure or response to include information 
thereafter acquired if ordered by the Administrative Law Judge or in the 
following circumstances:
    (1) A party is under a duty to supplement at appropriate intervals 
its initial disclosures under Sec.  3.31(b) if the party learns that in 
some material respect the information disclosed is incomplete or 
incorrect and if the additional or corrective information has not 
otherwise been made known to the other parties during the discovery 
process or in writing.
    (2) A party is under a duty seasonably to amend a prior response to 
an interrogatory, request for production, or request for admission if 
the party learns that the response is in some material respect 
incomplete or incorrect.
    (f) Stipulations. When approved by the Administrative Law Judge, the 
parties may by written stipulation (1) provide that depositions may be 
taken before any person, at any time or place, upon any notice, and in 
any manner and when so taken may be used like other depositions, and (2) 
modify the procedures provided by these rules for other methods of 
discovery.
    (g) Ex parte rulings on applications for compulsory process. 
Applications for the issuance of subpoenas to compel testimony at an 
adjudicative hearing pursuant to Sec.  3.34 may be made ex parte, and, 
if so made, such applications and rulings thereon shall remain ex parte 
unless otherwise ordered by the Administrative Law Judge or the 
Commission.

[43 FR 56864, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985; 61 
FR 50647, Sept. 26, 1996; 66 FR 17628, Apr. 3, 2001; 66 FR 20527, Apr. 
23, 2001]



Sec.  3.32  Admissions.

    (a) At any time after thirty (30) days after issuance of complaint, 
or after publication of notice of an adjudicative hearing in a 
rulemaking proceeding under Sec.  3.13, any party may serve on any other 
party a written request for admission of the truth of any matters 
relevant to the pending proceeding set forth in the request that relate 
to statements or opinions of fact or of the application of law to fact, 
including the genuineness of any documents described in the request. 
Copies of documents shall be served with the request unless they have 
been or are otherwise furnished or are known to be, and in the request 
are stated as being, in the possession of the other party. Each matter 
of which an admission is requested shall be separately set forth. A copy 
of the request shall be filed with the Secretary.
    (b) The matter is admitted unless, within ten (10) days after 
service of the request, or within such shorter or longer time as the 
Administrative Law Judge may allow, the party to whom the request is 
directed serves upon the

[[Page 60]]

party requesting the admission, with a copy filed with the Secretary, a 
sworn written answer or objection addressed to the matter. If objection 
is made, the reasons therefor shall be stated. The answer shall 
specifically deny the matter or set forth in detail the reasons why the 
answering party cannot truthfully admit or deny the matter. A denial 
shall fairly meet the substance of the requested admission, and when 
good faith requires that a party qualify its answer or deny only a part 
of the matter of which an admission is requested, the party shall 
specify so much of it as is true and qualify or deny the remainder. An 
answering party may not give lack of information or knowledge as a 
reason for failure to admit or deny unless the party states that it has 
made reasonable inquiry and that the information known to or readily 
obtainable by the party is insufficient to enable it to admit or deny. A 
party who considers that a matter of which an admission has been 
requested presents a genuine issue for trial may not, on that ground 
alone, object to the request; the party may deny the matter or set 
fourth reasons why the party cannot admit or deny it.
    (c) Any matter admitted under this rule is conclusively established 
unless the Administrative Law Judge on motion permits withdrawal or 
amendment of the admission. The Administrative Law Judge may permit 
withdrawal or amendment when the presentation of the merits of the 
proceeding will be subserved thereby and the party who obtained the 
admission fails to satisfy the Administrative Law Judge that withdrawal 
or amendment will prejudice him in maintaining his action or defense on 
the merits. Any admission made by a party under this rule is for the 
purpose of the pending proceeding only and is not an admission by him 
for any other purpose nor may it be used against him in any other 
proceeding.

[43 FR 56865, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985]



Sec.  3.33  Depositions.

    (a) In general. Any party may take a deposition of a named person or 
of a person or persons described with reasonable particularity, provided 
that such deposition is reasonably expected to yield information within 
the scope of discovery under Sec.  3.31(c)(1). Such party may, by 
motion, obtain from the Administrative Law Judge an order to preserve 
relevant evidence upon a showing that there is substantial reason to 
believe that such evidence would not otherwise be available for 
presentation at the hearing. Depositions may be taken before any person 
having power to administer oaths, either under the law of the United 
States or of the state or other place in which the deposition is taken, 
who may be designated by the party seeking the deposition, provided that 
such person shall have no interest in the outcome of the proceeding. The 
party seeking the deposition shall serve upon each person whose 
deposition is sought and upon each party to the proceeding reasonable 
notice in writing of the time and place at which it will be taken, and 
the name and address of each person or persons to be examined, if known, 
and if the name is not known, a description sufficient to identify them. 
The parties may stipulate in writing or the Administrative Law Judge may 
upon motion order that a deposition be taken by telephone or other 
remote electronic means. A deposition taken by such means is deemed 
taken at the place where the deponent is to answer questions.
    (b) [Reserved]
    (c) Notice to corporation or other organization. A party may name as 
the deponent a public or private corporation, partnership, association, 
governmental agency other than the Federal Trade Commission, or any 
bureau or regional office to the Federal Trade Commission, and describe 
with reasonable particularity the matters on which examination is 
requested. The organization so names shall designate one or more 
officers, directors, or managing agents, or other persons who consent to 
testify on its behalf, and may set forth, for each person designated, 
the matters on which he will testify. A subpoena shall advise a non-
party organization of its duty to make such a designation. The persons 
so designated shall testify as

[[Page 61]]

to matters known or reasonably available to the organization. This 
subsection does not preclude taking a deposition by any other procedure 
authorized in these rules.
    (d) Taking of deposition. Each deponent shall be duly sworn, and any 
party shall have the right to question him. Objections to questions or 
to evidence presented shall be in short form, stating the grounds of 
objections relied upon. The questions propounded and the answers 
thereto, together with all objections made, shall be recorded and 
certified by the officer. Thereafter, upon payment of the charges 
therefor, the officer shall furnish a copy of the deposition to the 
deponent and to any party.
    (e) Depositions upon written questions. A party desiring to take a 
deposition upon written questions shall serve them upon every other 
party with a notice stating:
    (1) The name and address of the person who is to answer them, and
    (2) The name or descriptive title and address of the officer before 
whom the deposition is to be taken.

A deposition upon written questions may be taken of a public or private 
corporation, partnership, association, governmental agency other than 
the Federal Trade Commission, or any bureau or regional office of the 
Federal Trade Commission in accordance with the provisions of Rule 
3.33(c). Within 30 days after the notice and written questions are 
served, any other party may serve cross questions upon all other 
parties. Within 10 days after being served with cross questions, the 
party taking the deposition may serve redirect questions upon all other 
parties. Within 10 days after being served with redirect questions, any 
other party may serve recross questions upon all other parties. The 
content of any question shall not be disclosed to the deponent prior to 
the taking of the deposition. A copy of the notice and copies of all 
questions served shall be delivered by the party taking the deposition 
to the officer designated in the notice, who shall proceed promptly to 
take the testimony of the deponent in response to the questions and to 
prepare, certify, and file or mail the deposition, attaching thereto the 
copy of the notice and the questions received by him. When the 
deposition is filed the party taking it shall promptly give notice 
thereof to all other parties.
    (f) Correction of deposition. A deposition may be corrected, as to 
form or substance, in the manner provided by Sec.  3.44(b). Any such 
deposition shall, in addition to the other required procedures, be read 
to or by the deponent and signed by him, unless the parties by 
stipulation waive the signing or the deponent is unavailable or cannot 
be found or refuses to sign. If the deposition is not signed by the 
deponent within 30 days of its submission or attempted submission, the 
officer shall sign it and certify that the signing has been waived or 
that the deponent is unavailable or that the deponent has refused to 
sign, as the case may be, together with the reason for the refusal to 
sign, if any has been given. The deposition may then be used as though 
signed unless, on a motion to suppress under Rule 3.33(g)(3)(iv), the 
Administrative Law Judge determines that the reasons given for the 
refusal to sign require rejection of the deposition in whole or in part. 
In addition to and not in lieu of the procedure for formal correction of 
the deposition, the deponent may enter in the record at the time of 
signing a list of objections to the transcription of his remarks, 
stating with specificity the alleged errors in the transcript.
    (g)(1) Use of depositions in hearings. At the hearing on the 
complaint or upon a motion, any part or all of a deposition, so far as 
admissible under the rules of evidence applied as though the witness 
were then present and testifying, may be used against any party who was 
present or represented at the taking of the deposition or who had 
reasonable notice thereof, in accordance with any of the following 
provisions:
    (i) Any deposition may be used for the purpose of contradicting or 
impeaching the testimony of deponent as a witness.
    (ii) The deposition of a party or of anyone who at the time of 
taking the deposition was an officer, director, or managing agent, or a 
person designated

[[Page 62]]

to testify on behalf of a public or private corporation, partnership or 
association which is a party, or of an official or employee (other than 
a special employee) of the Commission, may be used by an adverse party 
for any purpose.
    (iii) A deposition may be used by any party for any purpose if the 
Administrative Law Judge finds:
    (A) That the deponent is dead; or
    (B) That the deponent is out of the United States or is located at 
such a distance that his attendance would be impractical, unless it 
appears that the absence of the deponent was procured by the party 
offering the deposition; or
    (C) That the deponent is unable to attend or testify because of age, 
sickness, infirmity, or imprisonment; or
    (D) That the party offering the deposition has been unable to 
procure the attendance of the deponent by subpoena; or
    (E) That such exceptional circumstances exist as to make it 
desirable, in the interest of justice and with due regard to the 
importance of presenting the testimony of witnesses orally in open 
hearing, to allow the deposition to be used.
    (iv) If only part of a deposition is offered in evidence by a party, 
any other party may introduce any other part which ought in fairness to 
be considered with the part introduced.
    (2) Objections to admissibility. Subject to the provisions of 
paragraph (g)(3) of this section, objection may be made at the hearing 
to receiving in evidence any deposition or part thereof for any reason 
which would require the exclusion of the evidence if the witness were 
then present and testifying.
    (3) Effect of errors and irregularities in depositions--(i) As to 
notice. All errors and irregularities in the notice for taking a 
deposition are waived unless written objection is promptly served upon 
the party giving the notice.
    (ii) As to disqualification of officer. Objection to taking a 
deposition because of disqualification of the officer before whom it is 
to be taken is waived unless made before the taking of the deposition 
begins or as soon thereafter as the disqualification becomes known or 
could be discovered with reasonable diligence.
    (iii) As to taking of deposition. (A) Objections to the competency 
of a witness or to the competency, relevancy, or materiality of 
testimony are not waived by failure to make them before or during the 
taking of the deposition, unless the ground of the objection is one 
which might have been obviated or removed if presented at that time.
    (B) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties, and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless seasonable objection thereto is 
made at the taking of the deposition.
    (C) Objections to the form of written questions are waived unless 
served in writing upon all parties within the time allowed for serving 
the succeeding cross or other questions and within 5 days after service 
of the last questions authorized.
    (iv) As to completion and return of deposition. Errors and 
irregularities in the manner in which the testimony is transcribed or 
the deposition is prepared, signed, certified, endorsed, or otherwise 
dealt with by the officer are waived unless a motion to suppress the 
deposition or some part thereof is made with reasonable promptness after 
such defect is or with due diligence might have been ascertained.

[43 FR 56865, Dec. 4, 1978, as amended at 61 FR 50648, Sept. 26, 1996; 
66 FR 17629, Apr. 3, 2001]



Sec.  3.34  Subpoenas.

    (a) Subpoenas ad testificandum--(1) Prehearing. The Secretary of the 
Commission shall issue a subpoena, signed but otherwise in blank, 
requiring a person to appear and give testimony at the taking of a 
deposition to a party requesting such subpoena, who shall complete it 
before service.
    (2) Hearing. Application for issuance of a subpoena commanding a 
person to attend and give testimony at an adjudicative hearing shall be 
made in writing to the Administrative Law Judge. Such subpoena may be 
issued upon a showing of the reasonable relevancy of the expected 
testimony.

[[Page 63]]

    (b) Subpoenas duces tecum; subpoenas to permit inspection of 
premises. The Secretary of the Commission, upon request of a party, 
shall issue a subpoena, signed but otherwise in blank, commanding a 
person to produce and permit inspection and copying of designated books, 
documents, or tangible things, or commanding a person to permit 
inspection of premises, at a time and place therein specified. The 
subpoena shall specify with reasonable particularity the material to be 
produced. The person commanded by the subpoena need not appear in person 
at the place of production or inspection unless commanded to appear for 
a deposition or hearing pursuant to paragraph (a) of this section. As 
used herein, the term ``documents'' includes writings, drawings, graphs, 
charts, handwritten notes, film, photographs, audio and video recordings 
and any such representations stored on a computer, a computer disk, CD-
ROM, magnetic or electronic tape, or any other means of electronic 
storage, and other data compilations from which information can be 
obtained in machine-readable form (translated, if necessary, into 
reasonably usable form by the person subject to the subpoena). A 
subpoena duces tecum may be used by any party for purposes of discovery, 
for obtaining documents for use in evidence, or for both purposes, and 
shall specify with reasonable particularity the materials to be 
produced.
    (c) Motions to quash; limitation on subpoenas subject to Sec.  3.36. 
Any motion by the subject of a subpoena to limit or quash the subpoena 
shall be filed within the earlier of ten (10) days after service thereof 
or the time for compliance therewith. Such motions shall set forth all 
assertions of privilege or other factual and legal objections to the 
subpoena, including all appropriate arguments, affidavits and other 
supporting documentation, and shall include the statement required by 
Rule 3.22(f). Nothing in paragraphs (a) and (b) of this section 
authorizes the issuance of subpoenas requiring the appearance of, or the 
production of documents in the possession, custody, or control of, an 
official or employee of a governmental agency other than the Commission, 
or subpoenas to be served in a foreign country, which may be authorized 
only in accordance with Sec.  3.36.

[43 FR 56866, Dec. 4, 1978, as amended at 50 FR 42672, Oct. 22, 1985; 61 
FR 50648, Sept. 26, 1996; 66 FR 17629, Apr. 3, 2001]



Sec.  3.35  Interrogatories to parties.

    (a) Availability; Procedures for Use. (1) Any party may serve upon 
any other party written interrogatories, not exceeding twenty-five (25) 
in number, including all discrete subparts, to be answered by the party 
served or, if the party served is a public or private corporation, 
partnership, association or governmental agency, by any officer or 
agent, who shall furnish such information as is available to the party. 
For this purpose, information shall not be deemed to be available 
insofar as it is in the possession of the Commissioners, the General 
Counsel, the office of Administrative Law Judges, or the Secretary in 
his capacity as custodian or recorder of any such information, or their 
respective staffs.
    (2) Each interrogatory shall be answered separately and fully in 
writing under oath, unless it is objected to on grounds not raised and 
ruled on in connection with the authorization, in which event the 
reasons for objection shall be stated in lieu of an answer. The answers 
are to be signed by the person making them, and the objections signed by 
the attorney making them. The party upon whom the interrogatories have 
been served shall serve a copy of the answers, and objections, if any, 
within thirty (30) days after the service of the interrogatories. The 
Administrative Law Judge may allow a shorter or longer time.
    (b) Scope; use at hearing. (1) Interrogatories may relate to any 
matters that can be inquired into under Sec.  3.31(c)(1), and the 
answers may be used to the extent permitted by the rules of evidence.
    (2) An interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interrogatory involves an 
opinion or contention that relates to fact or the application of law to 
fact, but the Administrative Law Judge may order that such an 
interrogatory need not be answered until after designated discovery has 
been completed or until a pre-trial conference or other later time.

[[Page 64]]

    (c) Option to produce records. Where the answer to an interrogatory 
may be derived or ascertained from the records of the party upon whom 
the interrogatory has been served or from an examination, audit or 
inspection of such records, or from a compilation, abstract or summary 
based thereon, and the burden of deriving or ascertaining the answer is 
substantially the same for the party serving the interrogatory as for 
the party served, it is a sufficient answer to such interrogatory to 
specify the records from which the answer may be derived or ascertained 
and to afford to the party serving the interrogatory reasonable 
opportunity to examine, audit or inspect such records and to make 
copies, compilations, abstracts or summaries. The specification shall 
include sufficient detail to permit the interrogating party to identify 
readily the individual documents from which the answer may be 
ascertained.

[43 FR 56867, Dec. 4, 1978, as amended at 61 FR 50649, Sept. 26, 1996]



Sec.  3.36  Applications for subpoenas for records, or appearances 

by officials or employees, of governmental agencies other than the 
Commission, and subpoenas to be served in a foreign country.

    (a) Form. An application for issuance of a subpoena for the 
production of documents, as defined in Sec.  3.34(b), or for the 
issuance of a subpoena requiring access to documents or other tangible 
things, for the purposes described in Sec.  3.37(a), in the possession, 
custody, or control of a governmental agency other than the Commission 
or the officials or employees of such other agency, or for the issuance 
of a subpoena requiring the appearance of an official or employee of 
another governmental agency, or for the issuance of a subpoena to be 
served in a foreign country, shall be made in the form of a written 
motion filed in accordance with the provisions of Sec.  3.22(a). No 
application for records pursuant to Sec.  4.11 of this chapter or the 
Freedom of Information Act may be filed with the Administrative Law 
Judge.
    (b) Content. The motion shall satisfy the same requirements for a 
subpoena under Sec.  3.34 or a request for production or access under 
Sec.  3.37, together with a specific showing that:
    (1) The material sought is reasonable in scope:
    (2) If for purposes of discovery, the material falls within the 
limits of discovery under Sec.  3.31(c)(1), or, if for an adjudicative 
hearing, the material is reasonably relevant;
    (3) The information or material sought cannot reasonably be obtained 
by other means; and
    (4) With respect to subpoenas to be served in a foreign country, 
that the party seeking discovery has a good faith belief that the 
discovery requested would be permitted by treaty, law, custom or 
practice in the country from which the discovery is sought and that any 
additional procedural requirements have been or will be met before the 
subpoena is served.
    (c) Execution. If an ALJ issues an Order authorizing a subpoena 
pursuant to this section, the moving party may forward to the Secretary 
a request for the authorized subpoena, with a copy of the authorizing 
Order attached. Each such subpoena shall be signed by the Secretary; 
shall have attached to it a copy of the authorizing Order; and shall be 
served by the moving party only in conjunction with a copy of the 
authorizing Order.

[66 FR 17629, Apr. 3, 2001; 66 FR 20527, Apr. 23, 2001]



Sec.  3.37  Production of documents and things; access for inspection 
and other purposes.

    (a) Availability; procedures for use. Any party may serve on another 
party a request: to produce and permit the party making the request, or 
someone acting on the party's behalf, to inspect and copy any designated 
documents, as defined in Sec.  3.34(b), or to inspect and copy, test, or 
sample any tangible things which are within the scope of Sec.  
3.31(c)(1) and in the possession, custody or control of the party upon 
whom the request is served; or to permit entry upon designated land or 
other property in the possession or control of the party upon whom the 
order would be served for the purpose of inspection and measuring, 
surveying, photographing, testing, or sampling the property or any 
designated object

[[Page 65]]

or operation thereon, within the scope of Sec.  3.31(c)(1). Each such 
request shall specify with reasonable particularity the documents or 
things to be inspected, or the property to be entered. Each such request 
shall also specify a reasonable time, place, and manner of making the 
inspection and performing the related acts. A party shall make documents 
available as they are kept in the usual course of business or shall 
organize and label them to correspond with the categories in the 
request. A person not a party to the action may be compelled to produce 
documents and things or to submit to an inspection as provided in Sec.  
3.34.
    (b) Response; objections. The response of the party upon whom the 
request is served shall state, with respect to each item or category, 
that inspection and related activities will be permitted as requested, 
unless the request is objected to, in which event the reasons for the 
objection shall be stated. If objection is made to part of an item or 
category, the part shall be specified and inspection permitted of the 
remaining parts. The party submitting the request may move for an order 
under Sec.  3.38(a) with respect to any objection to or other failure to 
respond to the request or any part thereof, or any failure to permit 
inspection as requested.

[61 FR 50649, Sept. 26, 1996]



Sec.  3.38  Motion for order compelling disclosure or discovery; sanctions.

    (a) Motion for order to compel. A party may apply by motion to the 
Administrative Law Judge for an order compelling disclosure or 
discovery, including a determination of the sufficiency of the answers 
or objections with respect to the initial disclosures required by Sec.  
3.31(b), a request for admission under Sec.  3.32, a deposition under 
Sec.  3.33, or an interrogatory under Sec.  3.35.
    (1) Initial disclosures; requests for admission; depositions; 
interrogatories. Unless the objecting party sustains its burden of 
showing that the objection is justified, the Administrative Law Judge 
shall order that an answer be served or disclosure otherwise be made. If 
the Administrative Law Judge determines that an answer or other response 
by the objecting party does not comply with the requirements of these 
rules, he may order either that the matter is admitted or that an 
amended answer or response be served. The Administrative Law Judge may, 
in lieu of these orders, determine that final disposition may be made at 
a prehearing conference or at a designated time prior to trial.
    (2) Requests for production or access. If a party fails to respond 
to or comply as requested with a request for production or access made 
under Sec.  3.37(a), the discovering party may move for an order to 
compel production or access in accordance with the request.
    (b) If a party or an officer or agent of a party fails to comply 
with a subpoena or with an order including, but not limited to, an order 
for the taking of a deposition, the production of documents, or the 
answering of interrogatories, or requests for admissions, or an order of 
the Administrative Law Judge or the Commission issued as, or in 
accordance with, a ruling upon a motion concerning such an order or 
subpoena or upon an appeal from such a ruling, the Administrative Law 
Judge or the Commission, or both, for the purpose of permitting 
resolution of relevant issues and disposition of the proceeding without 
unnecessary delay despite such failure, may take such action in regard 
thereto as is just, including but not limited to the following:
    (1) Infer that the admission, testimony, documents or other evidence 
would have been adverse to the party;
    (2) Rule that for the purposes of the proceeding the matter or 
matters concerning which the order or subpoena was issued be taken as 
established adversely to the party;
    (3) Rule that the party may not introduce into evidence or otherwise 
rely, in support of any claim or defense, upon testimony by such party, 
officer, or agent, or the documents or other evidence;
    (4) Rule that the party may not be heard to object to introduction 
and use of secondary evidence to show what the withheld admission, 
testimony, documents, or other evidence would have shown;
    (5) Rule that a pleading, or part of a pleading, or a motion or 
other submission by the party, concerning which the order or subpoena 
was issued, be

[[Page 66]]

stricken, or that a decision of the proceeding be rendered against the 
party, or both.
    (c) Any such action may be taken by written or oral order issued in 
the course of the proceeding or by inclusion in an initial decision of 
the Administrative Law Judge or an order or opinion of the Commission. 
It shall be the duty of parties to seek and Administrative Law Judges to 
grant such of the foregoing means of relief or other appropriate relief 
as may be sufficient to compensate for withheld testimony, documents, or 
other evidence. If in the Administrative Law Judge's opinion such relief 
would not be sufficient, or in instances where a nonparty fails to 
comply with a subpoena or order, he shall certify to the Commission a 
request that court enforcement of the subpoena or order be sought.

[43 FR 56867, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985; 61 
FR 50649, Sept. 26, 1996]



Sec.  3.38A  Withholding requested material.

    (a) Any person withholding material responsive to a subpoena issued 
pursuant to Sec.  3.34, written interrogatories requested pursuant to 
Sec.  3.35, a request for production or access pursuant to Sec.  3.37, 
or any other request for the production of materials under this part, 
shall assert a claim of privilege or any similar claim not later than 
the date set for production of the material. Such person shall, if so 
directed in the subpoena or other request for production, submit, 
together with such claim, a schedule of the items withheld which states 
individually as to each such item the type, title, specific subject 
matter, and date of the item; the names, addresses, positions, and 
organizations of all authors and recipients of the item; and the 
specific grounds for claiming that the item is privileged.
    (b) A person withholding material for reasons described in Sec.  
3.38A(a) shall comply with the requirements of that subsection in lieu 
of filing a motion to limit or quash compulsory process.

(Sec. 5, 38 Stat. 719 as amended (15 U.S.C. 45))

[44 FR 54043, Sept. 18, 1979, as amended at 61 FR 50650, Sept. 26, 1996]



Sec.  3.39  Orders requiring witnesses to testify or provide other 
information and granting immunity.

    (a) Where Commission complaint counsel desire the issuance of an 
order requiring a witness or deponent to testify or provide other 
information and granting immunity under title 18, section 6002, United 
States Code, Directors and Assistant Directors of Bureaus and Regional 
Directors and Assistant Regional Directors of Commission Regional 
Offices who supervise complaint counsel responsible for presenting 
evidence in support of the complaint are authorized to determine:
    (1) That the testimony or other information sought from a witness or 
deponent, or prospective witness or deponent, may be necessary to the 
public interest, and
    (2) That such individual has refused or is likely to refuse to 
testify or provide such information on the basis of his privilege 
against self-incrimination; and to request, through the Commission's 
liaison officer, approval by the Attorney General for the issuance of 
such order. Upon receipt of approval by the Attorney General (or his 
designee), the Administrative Law Judge is authorized to issue an order 
requiring the witness or deponent to testify or provide other 
information and granting immunity when the witness or deponent has 
invoked his privilege against self-incrimination and it cannot be 
determined that such privilege was improperly invoked.
    (b) Requests by counsel other than Commission complaint counsel for 
an order requiring a witness to testify or provide other information and 
granting immunity under title 18, section 6002, United States Code, may 
be made to the Administrative Law Judge and may be made ex parte. When 
such requests are made, the Administrative Law Judge is authorized to 
determine:
    (1) That the testimony or other information sought from a witness or 
deponent, or prospective witness or deponent, may be necessary to the 
public interest, and
    (2) That such individual has refused or is likely to refuse to 
testify or provide such information on the basis of

[[Page 67]]

his privilege against self-incrimination; and, upon making such 
determinations, to request, through the Commission's liaison officer, 
approval by the Attorney General for the issuance of an order requiring 
a witness to testify or provide other information and granting immunity; 
and, after the Attorney General (or his designee) has granted such 
approval, to issue such order when the witness or deponent has invoked 
his privilege against self-incrimination and it cannot be determined 
that such privilege was improperly invoked.

(18 U.S.C. 6002, 6004)

[37 FR 5017, Mar. 9, 1972, as amended at 50 FR 53306, Dec. 31, 1985; 66 
FR 64143, Dec. 12, 2001]



Sec.  3.40  Admissibility of evidence in advertising substantiation cases.

    (a) If a person, partnership, or corporation is required through 
compulsory process under section 6, 9 or 20 of the Act issued after 
October 26, 1977 to submit to the Commission substantiation in support 
of an express or an implied representation contained in an 
advertisement, such person, partnership or corporation shall not 
thereafter be allowed, in any adjudicative proceeding in which it is 
alleged that the person, partnership, or corporation lacked a reasonable 
basis for the representation, and for any purpose relating to the 
defense of such allegation, to introduce into the record, whether 
directly or indirectly through references contained in documents or oral 
testimony, any material of any type whatsoever that was required to be 
but was not timely submitted in response to said compulsory process. 
Provided, however, that a person, partnership, or corporation is not, 
within the meaning of this section, required through compulsory process 
to submit substantiation with respect to those portions of said 
compulsory process to which such person, partnership, or corporation has 
raised good faith legal objections in a timely motion pursuant to the 
Commission's Rules of Practice and Procedure, until the Commission 
denies such motion; or if the person, partnership, or corporation 
thereafter continues to refuse to comply, until such process has been 
judicially enforced.
    (b) The Administrative Law Judge shall, upon motion, at any stage 
exclude all material that was required to be but was not timely 
submitted in response to compulsory process described in paragraph (a) 
of this section, or any reference to such material, unless the person, 
partnership, or corporation demonstrates in a hearing, and the 
Administrative Law Judge finds, that by the exercise of due diligence 
the material could not have been timely submitted in response to the 
compulsory process, and that the Commission was notified of the 
existence of the material immediately upon its discovery. Said findings 
of the Administrative Law Judge shall be in writing and shall specify 
with particularity the evidence relied upon. The rules normally 
governing the admissibility of evidence in Commission proceedings shall 
in any event apply to any material coming within the above exception.

[42 FR 56500, Oct. 10, 1977; 42 FR 61450, Dec. 5, 1977, as amended at 45 
FR 45578, July 7, 1980]



                           Subpart E_Hearings



Sec.  3.41  General rules.

    (a) Public hearings. All hearings in adjudicative proceedings shall 
be public unless an in camera order is entered by the Administrative Law 
Judge pursuant to Sec.  3.45(b) of this chapter or unless otherwise 
ordered by the Commission.
    (b) Expedition. Hearings shall proceed with all reasonable 
expedition, and, insofar as practicable, shall be held at one place and 
shall continue, except for brief intervals of the sort normally involved 
in judicial proceedings, without suspension until concluded. Consistent 
with the requirements of expedition:
    (1) The Administrative Law Judge may order hearings at more than one 
place and may grant a reasonable recess at the end of a case-in-chief 
for the purpose of discovery deferred during the pre-hearing procedure 
where the Administrative Law Judge determines that such recess will 
materially expedite the ultimate disposition of the proceeding.
    (2) When actions involving a common question of law or fact are 
pending before the Administrative Law Judge, the Administrative Law 
Judge may order a joint hearing of any or all the matters

[[Page 68]]

in issue in the actions; the Administrative Law Judge may order all the 
actions consolidated; and the Administrative Law Judge may make such 
orders concerning proceedings therein as may tend to avoid unnecessary 
costs or delay.
    (3) When separate hearings will be conducive to expedition and 
economy, the Administrative Law Judge may order a separate hearing of 
any claim, or of any separate issue, or of any number of claims or 
issues.
    (c) Rights of parties. Every party, except intervenors, whose rights 
are determined under Sec.  3.14, shall have the right of due notice, 
cross-examination, presentation of evidence, objection, motion, 
argument, and all other rights essential to a fair hearing.
    (d) Adverse witnesses. An adverse party, or an officer, agent, or 
employee thereof, and any witness who appears to be hostile, unwilling, 
or evasive, may be interrogated by leading questions and may also be 
contradicted and impeached by the party calling him.
    (e) Participation in adjudicative packaging and labeling hearings. 
At adjudicative hearings under the Fair Packaging and Labeling Act, any 
party or any interested person designated as a party pursuant to Sec.  
3.13, or his representative, may be sworn as a witness and heard.
    (f) Requests for an order requiring a witness to testify or provide 
other information and granting immunity under title 18, section 6002, of 
the United States Code, shall be disposed of in accordance with Sec.  
3.39.

(18 U.S.C. 6002, 6004)

[32 FR 8449, June 13, 1967, as amended at 37 FR 5017, Mar. 9, 1972; 37 
FR 5609, Mar. 17, 1972; 39 FR 34398, Sept. 25, 1974; 44 FR 62887, Nov. 
1, 1979]



Sec.  3.42  Presiding officials.

    (a) Who presides. Hearings in adjudicative proceedings shall be 
presided over by a duly qualified Administrative Law Judge or by the 
Commission or one or more members of the Commission sitting as 
Administrative Law Judges; and the term Administrative Law Judge as used 
in this part means and applies to the Commission or any of its members 
when so sitting.
    (b) How assigned. The presiding Administrative Law Judge shall be 
designated by the Chief Administrative Law Judge or, when the Commission 
or one or more of its members preside, by the Commission, who shall 
notify the parties of the Administrative Law Judge designated.
    (c) Powers and duties. Administrative Law Judges shall have the duty 
to conduct fair and impartial hearings, to take all necessary action to 
avoid delay in the disposition of proceedings, and to maintain order. 
They shall have all powers necessary to that end, including the 
following:
    (1) To administer oaths and affirmations;
    (2) To issue subpenas and orders requiring answers to questions;
    (3) To take depositions or to cause depositions to be taken;
    (4) To compel admissions, upon request of a party or on their own 
initiative;
    (5) To rule upon offers of proof and receive evidence;
    (6) To regulate the course of the hearings and the conduct of the 
parties and their counsel therein;
    (7) To hold conferences for settlement, simplification of the 
issues, or any other proper purpose;
    (8) To consider and rule upon, as justice may require, all 
procedural and other motions appropriate in an adjudicative proceeding, 
including motions to open defaults;
    (9) To make and file initial decisions;
    (10) To certify questions to the Commission for its determination;
    (11) To reject written submissions that fail to comply with rule 
requirements, or deny in camera status without prejudice until a party 
complies with all relevant rules; and
    (12) To take any action authorized by the rules in this part or in 
conformance with the provisions of the Administrative Procedure Act as 
restated and incorporated in title 5, U.S.C.
    (d) Suspension of attorneys by Administrative Law Judge. The 
Administrative Law Judge shall have the authority, for good cause stated 
on the record, to suspend or bar from participation in a particular 
proceeding any attorney who shall refuse to comply with his directions, 
or who shall be guilty of disorderly, dilatory, obstructionist, or

[[Page 69]]

contumacious conduct, or contemptuous language in the course of such 
proceeding. Any attorney so suspended or barred may appeal to the 
Commission in accordance with the provisions of Sec.  3.23(a). The 
appeal shall not operate to suspend the hearing unless otherwise ordered 
by the Administrative Law Judge or the Commission; in the event the 
hearing is not suspended, the attorney may continue to participate 
therein pending disposition of the appeal.
    (e) Substitution of Administrative Law Judge. In the event of the 
substitution of a new Administrative Law Judge for the one originally 
designated, any motion predicated upon such substitution shall be made 
within five (5) days thereafter.
    (f) Interference. In the performance of their adjudicative 
functions, Administrative Law Judges shall not be responsible to or 
subject to the supervision or direction of any officer, employee, or 
agent engaged in the performance of investigative or prosecuting 
functions for the Commission, and all direction by the Commission to 
Administrative Law Judges concerning any adjudicative proceedings shall 
appear in and be made a part of the record.
    (g) Disqualification of Administrative Law Judges. (1) When an 
Administrative Law Judge deems himself disqualified to preside in a 
particular proceeding, he shall withdraw therefrom by notice on the 
record and shall notify the Director of Administrative Law Judges of 
such withdrawal.
    (2) Whenever any party shall deem the Administrative Law Judge for 
any reason to be disqualified to preside, or to continue to preside, in 
a particular proceeding, such party may file with the Secretary a motion 
addressed to the Administrative Law Judge to disqualify and remove him, 
such motion to be supported by affidavits setting forth the alleged 
grounds for disqualification. If the Administrative Law Judge does not 
disqualify himself within ten (10) days, he shall certify the motion to 
the Commission, together with any statement he may wish to have 
considered by the Commission. The Commission shall promptly determine 
the validity of the grounds alleged, either directly or on the report of 
another Administrative Law Judge appointed to conduct a hearing for that 
purpose.
    (3) Such motion shall be filed at the earliest practicable time 
after the participant learns, or could reasonably have learned, of the 
alleged grounds for disqualification.
    (h) Failure to comply with Administrative Law Judge's directions. 
Any party who refuses or fails to comply with a lawfully issued order or 
direction of an Administrative Law Judge may be considered to be in 
contempt of the Commission. The circumstances of any such neglect, 
refusal, or failure, together with a recommendation for appropriate 
action, shall be promptly certified by the Administrative Law Judge to 
the Commission. The Commission may make such orders in regard thereto as 
the circumstances may warrant.

[32 FR 8449, June 13, 1967, as amended at 37 FR 5609, Mar. 17, 1972; 41 
FR 8340, Feb. 26, 1976; 43 FR 56868, Dec. 4, 1978; 46 FR 45750, Sept. 
15, 1981; 50 FR 53306, Dec. 31, 1985; 66 FR 17629, Apr. 3, 2001]



Sec.  3.43  Evidence.

    (a) Burden of proof. Counsel representing the Commission, or any 
person who has filed objections sufficient to warrant the holding of an 
adjudicative hearing pursuant to Sec.  3.13, shall have the burden of 
proof, but the proponent of any factual proposition shall be required to 
sustain the burden of proof with respect thereto.
    (b) Admissibility; exclusion of relevant evidence; mode and order of 
interrogation and presentation. (1) Relevant, material, and reliable 
evidence shall be admitted. Irrelevant, immaterial, and unreliable 
evidence shall be excluded. Evidence, even if relevant, may be excluded 
if its probative value is substantially outweighed by the danger of 
unfair prejudice, confusion of the issues, or if the evidence would be 
misleading, or by considerations of undue delay, waste of time, or 
needless presentation of cumulative evidence. The Administrative Law 
Judge shall exercise reasonable control over the mode and order of 
interrogating witnesses and presenting evidence so as to--
    (i) Make the interrogation and presentation effective for the 
ascertainment of the truth.

[[Page 70]]

    (ii) Avoid needless consumption of time; and
    (iii) Protect witnesses from harassment or undue embarrassment.
    (2) As respondents are in the best position to determine the nature 
of documents generated by such respondents and which come from their own 
files, the burden of proof is on the respondent to introduce evidence to 
rebut a presumption that such documents are authentic and kept in the 
regular course of business. See Lenox, Inc., 73 F.T.C. 578, 603-04 
(1968).
    (c) Information obtained in investigations. Any documents, papers, 
books, physical exhibits, or other materials or information obtained by 
the Commission under any of its powers may be disclosed by counsel 
representing the Commission when necessary in connection with 
adjudicative proceedings and may be offered in evidence by counsel 
representing the Commission in any such proceeding.
    (d) Official notice. When any decision of an Administrative Law 
Judge or of the Commission rests, in whole or in part, upon the taking 
of official notice of a material fact not appearing in evidence of 
record, opportunity to disprove such noticed fact shall be granted any 
party making timely motion therefor.
    (e) Objections. Objections to evidence shall timely and briefly 
state the grounds relied upon, but the transcript shall not include 
argument or debate thereon except as ordered by the Administrative Law 
Judge. Rulings on all objections shall appear in the record.
    (f) Exceptions. Formal exception to an adverse ruling is not 
required.
    (g) Excluded evidence. When an objection to a question propounded to 
a witness is sustained, the questioner may make a specific offer of what 
he expects to prove by the answer of the witness, or the Administrative 
Law Judge may, in his discretion, receive and report the evidence in 
full. Rejected exhibits, adequately marked for identification, shall be 
retained in the record so as to be available for consideration by any 
reviewing authority.

[32 FR 8449, June 13, 1967; 32 FR 8711, June 17, 1967, as amended at 48 
FR 44766, Sept. 30, 1983; 61 FR 50650, Sept. 26, 1996; 66 FR 17629, Apr. 
3, 2001; 66 FR 20527, Apr. 23, 2001]



Sec.  3.44  Record.

    (a) Reporting and transcription. Hearings shall be stenographically 
reported and transcribed by the official reporter of the Commission 
under the supervision of the Administrative Law Judge, and the original 
transcript shall be a part of the record and the sole official 
transcript. Copies of transcripts are available from the reporter at 
rates not to exceed the maximum rates fixed by contract between the 
Commission and the reporter.
    (b) Corrections. Corrections of the official transcript may be made 
only when they involve errors affecting substance and then only in the 
manner herein provided. Corrections ordered by the Administrative Law 
Judge or agreed to in a written stipulation signed by all counsel and 
parties not represented by counsel, and approved by the Administrative 
Law Judge, shall be included in the record, and such stipulations, 
except to the extent they are capricious or without substance, shall be 
approved by the Administrative Law Judge. Corrections shall not be 
ordered by the Administrative Law Judge except upon notice and 
opportunity for the hearing of objections. Such corrections shall be 
made by the official reporter by furnishing substitute type pages, under 
the usual certificate of the reporter, for insertion in the official 
record. The original uncorrected pages shall be retained in the files of 
the Commission.
    (c) Closing of the hearing record. Immediately upon completion of 
the evidentiary hearing, the Administrative Law Judge shall issue an 
order closing the hearing record. The Administrative Law Judge shall 
retain the discretion to permit or order correction of the record as 
provided in Sec.  3.44(b).

[32 FR 8449, June 13, 1967, as amended at 61 FR 50650, Sept. 26, 1996; 
66 FR 17630, Apr. 3, 2001]



Sec.  3.45  In camera orders.

    (a) Definition. Except as hereinafter provided, material made 
subject to an in camera order will be kept confidential and not placed 
on the public record of the proceeding in which it was submitted. Only 
respondents, their counsel, authorized Commission personnel,

[[Page 71]]

and court personnel concerned with judicial review may have access 
thereto, provided that the Administrative Law Judge, the Commission and 
reviewing courts may disclose such in camera material to the extent 
necessary for the proper disposition of the proceeding.
    (b) In camera treatment of material. A party or third party may 
obtain in camera treatment for material, or portions thereof, offered 
into evidence only by motion to the Administrative Law Judge. Parties 
who seek to use material obtained from a third party subject to 
confidentiality restrictions must demonstrate that the third party has 
been given at least ten (10) days notice of the proposed use of such 
material. Each such motion must include an attachment containing a copy 
of each page of the document in question on which in camera or otherwise 
confidential excerpts appear. The Administrative Law Judge may order 
that such material, whether admitted or rejected, be placed in camera 
only after finding that its public disclosure will likely result in a 
clearly defined, serious injury to the person, partnership or 
corporation requesting in camera treatment. This finding shall be based 
on the standard articulated in H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 
1188 (1961); see also Bristol-Myers Co., 90 F.T.C. 455, 456 (1977), 
which established a three-part test that was modified by General Foods 
Corp., 95 F.T.C. 352, 355 (1980). The party submitting material for 
which in camera treatment is sought must provide, for each piece of such 
evidence and affixed to such evidence, the name and address of any 
person who should be notified in the event that the Commission intends 
to disclose in camera information in a final decision. No material, or 
portion thereof, offered into evidence, whether admitted or rejected, 
may be withheld from the public record unless it falls within the scope 
of an order issued in accordance with this section, stating the date on 
which in camera treatment will expire, and including:
    (1) A description of the material;
    (2) A statement of the reasons for granting in camera treatment; and
    (3) A statement of the reasons for the date on which in camera 
treatment will expire. Such expiration date may not be omitted except in 
unusual circumstances, in which event the order shall state with 
specificity the reasons why the need for confidentiality of the 
material, or portion thereof at issue is not likely to decrease over 
time, and any other reasons why such material is entitled to in camera 
treatment for an indeterminate period. If an in camera order is silent 
as to duration, without explanation, then it will expire three years 
after its date of issuance. Material subject to an in camera order shall 
be segregated from the public record and filed in a sealed envelope, or 
other appropriate container, bearing the title, the docket number of the 
proceeding, the notation ``In Camera Record under Sec.  3.45,'' and the 
date on which in camera treatment expires. If the Administrative Law 
Judge has determined that in camera treatment should be granted for an 
indeterminate period, the notation should state that fact.
    (c) Release of in camera material. In camera material constitutes 
part of the confidential records of the Commission and is subject to the 
provisions of Sec.  4.11 of this chapter.
    (d) Briefs and other submissions referring to in camera or 
confidential information. Parties shall not disclose information that 
has been granted in camera status pursuant to Sec.  3.45(b) or is 
subject to confidentiality protections pursuant to a protective order in 
the public version of proposed findings, briefs, or other documents. 
This provision does not preclude references in such proposed findings, 
briefs, or other documents to in camera or other confidential 
information or general statements based on the content of such 
information.
    (e) When in camera or confidential information is included in briefs 
and other submissions. If a party includes specific information that has 
been granted in camera status pursuant to Sec.  3.45(b) or is subject to 
confidentiality protections pursuant to a protective order in any 
document filed in a proceeding under this part, the party shall file two 
versions of the document. A complete version shall be marked ``In 
Camera'' or ``Subject to Protective Order,'' as appropriate, on the 
first page and shall be filed with the Secretary and served by

[[Page 72]]

the party on the other parties in accordance with the rules in this 
part. Submitters of in camera or other confidential material should mark 
any such material in the complete versions of their submissions in a 
conspicuous matter, such as with highlighting or bracketing. References 
to in camera or confidential material must be supported by record 
citations to relevant evidentiary materials and associated ALJ in camera 
or other confidentiality rulings to confirm that in camera or other 
confidential treatment is warranted for such material. In addition, the 
document must include an attachment containing a copy of each page of 
the document in question on which in camera or otherwise confidential 
excerpts appear, and providing the name and address of any person who 
should be notified of the Commission's intent to disclose in a final 
decision any of the in camera or otherwise confidential information in 
the document. Any time period within which these rules allow a party to 
respond to a document shall run from the date the party is served with 
the complete version of the document. An expurgated version of the 
document, marked ``Public Record'' on the first page and omitting the in 
camera and confidential information and attachment that appear in the 
complete version, shall be filed with the Secretary within five (5) days 
after the filing of the complete version, unless the Administrative Law 
Judge or the Commission directs otherwise, and shall be served by the 
party on the other parties in accordance with the rules in this part. 
The expurgated version shall indicate any omissions with brackets or 
ellipses, and its pagination and depiction of text on each page shall be 
identical to that of the in camera version.
    (f) When in camera or confidential information is included in 
rulings or recommendations of the Administrative Law Judge. If the 
Administrative Law Judge includes in any ruling or recommendation 
information that has been granted in camera status pursuant to Sec.  
3.45(b) or is subject to confidentiality protections pursuant to a 
protective order, the Administrative Law Judge shall file two versions 
of the ruling or recommendation. A complete version shall be marked ``In 
Camera'' or ``Subject to Protective Order,'' as appropriate, on the 
first page and shall be served upon the parties. The complete version 
will be placed in the in camera record of the proceeding. An expurgated 
version, to be filed within five (5) days after the filing of the 
complete version, shall omit the in camera and confidential information 
that appears in the complete version, shall be marked ``Public Record'' 
on the first page, shall be served upon the parties, and shall be 
included in the public record of the proceeding.
    (g) Provisional in camera rulings. The Administrative Law Judge may 
make a provisional grant of in camera status to materials if the showing 
required in Sec.  3.45(b) cannot be made at the time the material is 
offered into evidence but the Administrative Law Judge determines that 
the interests of justice would be served by such a ruling. Within twenty 
(20) days of such a provisional grant of in camera status, the party 
offering the evidence or an interested third party must present a motion 
to the Administrative Law Judge for a final ruling on whether in camera 
treatment of the material is appropriate pursuant to Sec.  3.45(b). If 
no such motion is filed, the Administrative Law Judge may either exclude 
the evidence, deny in camera status, or take such other action as is 
appropriate.

[66 FR 17630, Apr. 3, 2001; 66 FR 20527, Apr. 23, 2001]



Sec.  3.46  Proposed findings, conclusions, and order.

    (a) General. Upon the closing of the hearing record, or within a 
reasonable time thereafter fixed by the Administrative Law Judge, any 
party may file with the Secretary of the Commission for consideration of 
the Administrative Law Judge proposed findings of fact, conclusions of 
law, and rule or order, together with reasons therefor and briefs in 
support thereof. Such proposals shall be in writing, shall be served 
upon all parties, and shall contain adequate references to the record 
and authorities relied on. If a party includes in the proposals 
information that has been granted in camera status pursuant to Sec.  
3.45(b), the party shall file

[[Page 73]]

two versions of the proposals in accordance with the procedures set 
forth in Sec.  3.45(e).
    (b) Exhibit Index. The first statement of proposed findings of fact 
and conclusions of law filed by a party shall include an index listing 
for each exhibit offered by the party and received in evidence:
    (1) The exhibit number, followed by
    (2) The exhibit's title or a brief description if the exhibit is 
untitled;
    (3) The transcript page at which the Administrative Law Judge ruled 
on the exhibit's admissibility or a citation to any written order in 
which such ruling was made;
    (4) The transcript pages at which the exhibit is discussed;
    (5) An identification of any other exhibit which summarizes the 
contents of the listed exhibit, or of any other exhibit of which the 
listed exhibit is a summary;
    (6) A cross-reference, by exhibit number, to any other portions of 
that document admitted as a separate exhibit on motion by any other 
party; and
    (7) A statement whether the exhibit has been accorded in camera 
treatment, and a citation to the in camera ruling.
    (c) Witness Index. The first statement of proposed findings of fact 
and conclusions of law filed by a party shall also include an index to 
the witnesses called by that party, to include for each witness:
    (1) The name of the witness;
    (2) A brief identification of the witness;
    (3) The transcript pages at which any testimony of the witness 
appears; and
    (4) A statement whether the exhibit has been accorded in camera 
treatment, and a citation to the in camera ruling.
    (d) Stipulated indices. As an alternative to the filing of separate 
indices, the parties are encouraged to stipulate to joint exhibit and 
witness indices at the time the first statement of proposed findings of 
fact and conclusions of law is due to be filed.
    (e) Rulings. The record shall show the Administrative Law Judge's 
ruling on each proposed finding and conclusion, except when the order 
disposing of the proceeding otherwise informs the parties of the action 
taken.

[48 FR 56945, Dec. 27, 1983, as amended at 52 FR 22294, June 11, 1987; 
61 FR 50650, Sept. 26, 1996; 66 FR 17631, Apr. 3, 2001]



                           Subpart F_Decision



Sec.  3.51  Initial decision.

    (a) When filed and when effective. The Administrative Law Judge 
shall file an initial decision within ninety (90) days after closing the 
hearing record pursuant to Sec.  3.44(c), or within thirty (30) days 
after a default or the granting of a motion for summary decision or 
waiver by the parties of the filing of proposed findings of fact, 
conclusions of law and order, or within such further time as the 
Commission may by order allow upon written request from the 
Administrative Law Judge. In no event shall the initial decision be 
filed any later than one (1) year after the issuance of the 
administrative compliant, except that the Administrative Law Judge may, 
upon a finding of extraordinary circumstances, extend the one-year 
deadline for a period of up to sixty (60) days. Such extension, upon its 
expiration, may be continued for additional consecutive periods of up to 
sixty (60) days, provided that each additional period is based upon a 
finding by the Administrative Law Judge that extraordinary circumstances 
are still present. The pendency of any collateral federal court 
proceeding that relates to the administrative adjudication shall toll 
the one-year deadline for filing the initial decision. The ALJ may stay 
the administrative proceeding until resolution of the collateral federal 
court proceeding. Once issued, the initial decision shall become the 
decision of the Commission thirty (30) days after service thereof upon 
the parties or thirty (30) days after the filing of a timely notice of 
appeal, whichever shall be later, unless a party filing such a notice 
shall have perfected an appeal by the timely filing of an appeal brief 
or the Commission shall have issued an order placing the case on its own 
docket for review or staying the effective date of the decision.
    (b) Exhaustion of administrative remedies. An initial decision shall 
not be considered final agency action subject

[[Page 74]]

to judicial review under 5 U.S.C. 704. Any objection to a ruling by the 
Administrative Law Judge, or to a finding, conclusion or a provision of 
the order in the initial decision, which is not made a part of an appeal 
to the Commission shall be deemed to have been waived.
    (c) Content. (1) An initial decision shall be based on a 
consideration of the whole record relevant to the issues decided, and 
shall be supported by reliable and probative evidence. The initial 
decision shall include a statement of findings (with specific page 
references to principal supporting items of evidence in the record) and 
conclusions, as well as the reasons or basis therefor, upon all the 
material issues of fact, law, or discretion presented on the record (or 
those designated under paragraph (c)(2) of this section) and an 
appropriate rule or order. Rulings containing information granted in 
camera status pursuant to Sec.  3.45 shall be filed in accordance with 
Sec.  3.45(f).
    (2) When more than one claim for relief is presented in an action, 
or when multiple parties are involved, the Administrative Law Judge may 
direct the entry of an initial decision as to one or more but fewer than 
all of the claims or parties only upon an express determination that 
there is no just reason for delay and upon an express direction for the 
entry of initial decision.
    (d) By whom made. The initial decision shall be made and filed by 
the Administrative Law Judge who presided over the hearings, except when 
he shall have become unavailable to the Commission.
    (e) Reopening of proceeding by Administrative Law Judge; termination 
of jurisdiction. (1) At any time prior to the filing of his initial 
decision, an Administrative Law Judge may reopen the proceeding for the 
reception of further evidence.
    (2) Except for the correction of clerical errors or pursuant to an 
order of remand from the Commission, the jurisdiction of the 
Administrative Law Judge is terminated upon the filing of his initial 
decision with respect to those issues decided pursuant to paragraph 
(c)(1) of this section.

[32 FR 8449, June 13, 1967, as amended at 35 FR 10656, July 1, 1970; 44 
FR 62887, Nov. 1, 1979; 48 FR 52576, Nov. 21, 1983; 48 FR 54810, Dec. 7, 
1983; 52 FR 22294, June 11, 1987; 61 FR 50650, Sept. 26, 1996; 66 FR 
17631, Apr. 3, 2001]



Sec.  3.52  Appeal from initial decision.

    (a) Who may file; notice of intention. Any party to a proceeding may 
appeal an initial decision to the Commission by filing a notice of 
appeal with the Secretary within ten (10) days after service of the 
initial decision. The notice shall specify the party or parties against 
whom the appeal is taken and shall designate the initial decision and 
order or part thereof appealed from. If a timely notice of appeal is 
filed by a party, any other party may thereafter file a notice of appeal 
within five (5) days after service of the first notice, or within ten 
(10) days after service of the initial decision, whichever period 
expires last.
    (b) Appeal brief. (1) The appeal shall be in the form of a brief, 
filed within thirty (30) days after service of the initial decision, and 
shall contain, in the order indicated, the following:
    (i) A subject index of the matter in the brief, with page 
references, and a table of cases (alphabetically arranged), textbooks, 
statutes, and other material cited, with page references thereto;
    (ii) A concise statement of the case, which includes a statement of 
facts relevant to the issues submitted for review, and a summary of the 
argument, which must contain a succinct, clear, and accurate statement 
of the arguments made in the body of the brief, and which must not 
merely repeat the argument headings;
    (iii) A specification of the questions intended to be urged;
    (iv) The argument presenting clearly the points of fact and law 
relied upon in support of the position taken on each question, with 
specific page references to the record and the legal or other material 
relied upon; and
    (v) A proposed form of order for the Commission's consideration 
instead of the order contained in the initial decision.

[[Page 75]]

    (2) The brief shall not, without leave of the Commission, exceed 
18,750 words, including all footnotes and other substantive matter but 
excluding the cover, table of contents, table of authorities, 
glossaries, proposed form of order, appendices containing only sections 
of statutes or regulations, and any attachment required by Sec.  
3.45(e).
    (c) Answering brief. Within thirty (30) days after service of the 
appeal brief, the appellee may file an answering brief, which shall 
contain a subject index, with page references, and a table of cases 
(alphabetically arranged), textbooks, statutes, and other material 
cited, with page references thereto, as well as arguments in response to 
the appellant's appeal brief. However, if the appellee is also cross-
appealing, its answering brief shall also contain its arguments as to 
any issues the party is raising on cross-appeal, including the points of 
fact and law relied upon in support of its position on each question, 
with specific page references to the record and legal or other material 
on which the party relies in support of its cross-appeal, and a proposed 
form of order for the Commission's consideration instead of the order 
contained in the initial decision. If the appellee does not cross-
appeal, its answering brief shall not, without leave of the Commission, 
exceed 18,750 words. If the appellee cross-appeals, its brief in answer 
and on cross-appeal shall not, without leave of the Commission, exceed 
26,250 words. The word count limitations of this paragraph include all 
footnotes and other substantive matter but exclude the cover, table of 
contents, table of authorities, glossaries, proposed form of order, 
appendices containing only sections of statutes or regulations, and any 
attachment required by Sec.  3.45(e).
    (d) Reply brief. Within seven (7) days after service of the 
appellee's answering brief, the appellant may file a reply brief, which 
shall be limited to rebuttal of matters in the answering brief and shall 
not, without leave of the Commission, exceed 18,750 words. If the 
appellee has cross-appealed, any party who is the subject of the cross-
appeal may, within thirty (30) days after service of such appellee's 
brief, file a reply brief, which shall be limited to rebuttal of matters 
in the appellee's brief and shall not, without leave of the Commission, 
exceed 18,750 words. The appellee who has cross-appealed may, within 
seven (7) days after service of a reply to its cross-appeal, file an 
additional brief, which shall be limited to rebuttal of matters in the 
reply to its cross-appeal and shall not, without leave of the 
Commission, exceed 11,250 words. The word count limitations of this 
paragraph include all footnotes and other substantive matter but exclude 
the cover, table of contents, table of authorities, glossaries, proposed 
form of order, appendices containing only sections of statutes or 
regulations, and any attachment required by Sec.  3.45(e). No further 
briefs may be filed except by leave of the Commission.
    (e) In camera information. If a party includes in any brief to be 
filed under this section information that has been granted in camera 
status pursuant to Sec.  3.45(b) or is subject to confidentiality 
provisions pursuant to a protective order, the party shall file two 
versions of the brief in accordance with the procedures set forth in 
Sec.  3.45(e). The time period specified by this section within which a 
party may file an answering or reply brief will begin to run upon 
service on the party of the in camera or confidential version of a 
brief.
    (f) Signature. (1) The original of each brief filed shall have a 
hand-signed signature by an attorney of record for the party, or in the 
case of parties not represented by counsel, by the party itself, or by a 
partner if a partnership, or by an officer of the party if it is a 
corporation or an unincorporated association.
    (2) Signing a brief constitutes a representation by the signer that 
he or she has read it; that to the best of his or her knowledge, 
information, and belief, the statements made in it are true; that it is 
not interposed for delay; that it complies all the applicable word count 
limitation; and that to the best of his or her knowledge, information, 
and belief, it complies with all the other rules in this part. If a 
brief is not signed or is signed with intent to defeat the purpose of 
this section, it may be stricken as sham and false and the proceeding 
may go forward as though the brief has not been filed.

[[Page 76]]

    (g) Designation of appellant and appellee in cases involving cross-
appeals. In a case involving an appeal by complaint counsel and one or 
more respondents, any respondent who has filed a timely notice of appeal 
and as to whom the Administrative Law Judge has issued an order to cease 
and desist shall be deemed an appellant for purposes of paragraphs (b), 
(c), and (d) of this section. In a case in which the Administrative Law 
Judge has dismissed the complaint as to all respondents, complaint 
counsel shall be deemed the appellant for purposes of paragraphs (b), 
(c), and (d) of this section.
    (h) Oral argument. All oral arguments shall be public unless 
otherwise ordered by the Commission. Oral arguments will be held in all 
cases on appeal to the Commission, unless the Commission otherwise 
orders upon its own initiative or upon request of any party made at the 
time of filing his brief. Oral arguments before the Commission shall be 
reported stenographically, unless otherwise ordered, and a member of the 
Commission absent from an oral argument may participate in the 
consideration and decision of the appeal in any case in which the oral 
argument is stenographically reported. The purpose of oral argument is 
to emphasize and clarify the written argument appearing in the briefs 
and to answer questions. Reading at length from the briefs or other 
texts is not favored.
    (i) Corrections in transcript of oral argument. The Commission will 
entertain only joint motions of the parties requesting corrections in 
the transcript of oral argument, except that the Commission will receive 
a unilateral motion which recites that the parties have made a good 
faith effort to stipulate to the desired corrections but have been 
unable to do so. If the parties agree in part and disagree in part, they 
should file a joint motion incorporating the extent of their agreement, 
and, if desired, separate motions requesting those corrections to which 
they have been unable to agree. The Secretary, pursuant to delegation of 
authority by the Commission, is authorized to prepare and issue in the 
name of the Commission a brief ``Order Correcting Transcript'' whenever 
a joint motion to correct transcript is received.
    (j) Briefs of amicus curiae. A brief of an amicus curiae may be 
filed by leave of the Commission granted on motion with notice to the 
parties or at the request of the Commission, except that such leave 
shall not be required when the brief is presented by an agency or 
officer of the United States; or by a State, territory, commonwealth, or 
the District of Columbia, or by an agency or officer of any of them. The 
brief may be conditionally filed with the motion for leave. A motion for 
leave shall identify the interest of the applicant and state how a 
Commission decision in the matter would affect the applicant or persons 
it represents. The motion shall also state the reasons why a brief of an 
amicus curiae is desirable. Except as otherwise permitted by the 
Commission, an amicus curiae shall file its brief within the time 
allowed the parties whose position as to affirmance or reversal the 
amicus brief will support. The Commission shall grant leave for a later 
filing only for cause shown, in which event it shall specify within what 
period such brief must be filed. A motion for an amicus curiae to 
participate in oral argument will be granted only for extraordinary 
reasons.
    (k) Extension of word count limitation. Extensions of word count 
limitation are disfavored, and will only be granted where a party can 
make a strong showing that undue prejudice would result from complying 
with the existing limit.

[66 FR 17631, Apr. 3, 2001; 66 FR 20527, Apr. 23, 2001]



Sec.  3.53  Review of initial decision in absence of appeal.

    An order by the Commission placing a case on its own docket for 
review will set forth the scope of such review and the issues which will 
be considered and will make provision for the filing of briefs if deemed 
appropriate by the Commission.



Sec.  3.54  Decision on appeal or review.

    (a) Upon appeal from or review of an initial decision, the 
Commission will consider such parts of the record as are cited or as may 
be necessary to resolve the issues presented and, in addition,

[[Page 77]]

will, to the extent necessary or desirable, exercise all the powers 
which it could have exercised if it had made the initial decision.
    (b) In rendering its decision, the Commission will adopt, modify, or 
set aside the findings, conclusions, and rule or order contained in the 
initial decision, and will include in the decision a statement of the 
reasons or basis for its action and any concurring and dissenting 
opinions.
    (c) In those cases where the Commission believes that it should have 
further information or additional views of the parties as to the form 
and content of the rule or order to be issued, the Commission, in its 
discretion, may withhold final action pending the receipt of such 
additional information or views.
    (d) The order of the Commission disposing of adjudicative hearings 
under the Fair Packaging and Labeling Act will be published in the 
Federal Register and, if it contains a rule or regulation, will specify 
the effective date thereof, which will not be prior to the ninetieth 
(90th) day after its publication unless the Commission finds that 
emergency conditions exist necessitating an earlier effective date, in 
which event the Commission will specify in the order its findings as to 
such conditions.



Sec.  3.55  Reconsideration.

    Within fourteen (14) days after completion of service of a 
Commission decision, any party may file with the Commission a petition 
for reconsideration of such decision, setting forth the relief desired 
and the grounds in support thereof. Any petition filed under this 
subsection must be confined to new questions raised by the decision or 
final order and upon which the petitioner had no opportunity to argue 
before the Commission. Any party desiring to oppose such a petition 
shall file an answer thereto within ten (10) days after service upon him 
of the petition. The filing of a petition for reconsideration shall not 
operate to stay the effective date of the decision or order or to toll 
the running of any statutory time period affecting such decision or 
order unless specifically so ordered by the Commission.

[32 FR 8449, June 13, 1967, as amended at 61 FR 50650, Sept. 26, 1996]



Sec.  3.56  Effective date of orders; application for stay.

    (a) Other than consent orders, an order to cease and desist under 
section 5 of the FTC Act becomes effective upon the sixtieth day after 
service, except as provided in section 5(g)(3) of the FTC Act, and 
except for divestiture provisions, as provided in section 5(g)(4) of the 
FTC Act.
    (b) Any party subject to a cease and desist order under section 5 of 
the FTC Act, other than a consent order, may apply to the Commission for 
a stay of all or part of that order pending judicial review. If, within 
30 days after the application was received by the Commission, the 
Commission either has denied or has not acted on the application, a stay 
may be sought in a court of appeals where a petition for review of the 
order is pending.
    (c) An application for stay shall state the reasons a stay is 
warranted and the facts relied upon, and shall include supporting 
affidavits or other sworn statements, and a copy of the relevant 
portions of the record. The application shall address the likelihood of 
the applicant's success on appeal, whether the applicant will suffer 
irreparable harm if a stay is not granted, the degree of injury to other 
parties if a stay is granted, and why the stay is in the public 
interest.
    (d) An application for stay shall be filed within 30 days of service 
of the order on the party. Such application shall be served in 
accordance with the provisions of Sec.  4.4(b) of this part that are 
applicable to service in adjudicative proceedings. Any party opposing 
the application may file an answer within 5 business days after receipt 
of the application. The applicant may file a reply brief, limited to new 
matters raised by the answer, within 3 business days after receipt of 
the answer.

[60 FR 37748, July 21, 1995]

Subpart G [Reserved]

[[Page 78]]



                   Subpart H_Reopening of Proceedings



Sec.  3.71  Authority.

    Except while pending in a U.S. court of appeals on a petition for 
review (after the transcript of the record has been filed) or in the 
U.S. Supreme Court, a proceeding may be reopened by the Commission at 
any time in accordance with Sec.  3.72. Any person subject to a 
Commission decision containing a rule or order which has become 
effective, or an order to cease and desist which has become final may 
file a request to reopen the proceeding in accordance with Sec.  2.51.

[44 FR 40637, July 12, 1979]



Sec.  3.72  Reopening.

    (a) Before statutory review. At any time prior to the expiration of 
the time allowed for filing a petition for review or prior to the filing 
of the transcript of the record of a proceeding in a U.S. court of 
appeals pursuant to a petition for review, the Commission may upon its 
own initiative and without prior notice to the parties reopen the 
proceeding and enter a new decision modifying or setting aside the whole 
or any part of the findings as to the facts, conclusions, rule, order, 
or opinion issued by the Commission in such proceeding.
    (b) After decision has become final. (1) Whenever the Commission is 
of the opinion that changed conditions of fact or law or the public 
interest may require that a Commission decision containing a rule or 
order which has become effective, or an order to cease and desist which 
has become final by reason of court affirmance or expiration of the 
statutory period for court review without a petition for review having 
been filed, or a Commission decision containing an order dismissing a 
proceeding, should be altered, modified, or set aside in whole or in 
part, the Commission will, except as provided in Sec.  2.51, serve upon 
each person subject to such decision (in the case of proceedings 
instituted under Sec.  3.13, such service may be by publication in the 
Federal Register) an order to show cause, stating the changes it 
proposes to make in the decision and the reasons they are deemed 
necessary. Within thirty (30) days after service of such order to show 
cause, any person served may file an answer thereto. Any person not 
responding to the order within the time allowed may be deemed to have 
consented to the proposed changes.
    (2) Whenever an order to show cause is not opposed, or if opposed 
but the pleadings do not raise issues of fact to be resolved, the 
Commission, in its discretion, may decide the matter on the order to 
show cause and answer thereto, if any, or it may serve upon the parties 
(in the case of proceedings instituted under Sec.  3.13, such service 
may be by publication in Federal Register) a notice of hearing, setting 
forth the date when the cause will be heard. In such a case, the hearing 
will be limited to the filing of briefs and may include oral argument 
when deemed necessary by the Commission. When the pleadings raise 
substantial factual issues, the Commission will direct such hearings as 
it deems appropriate, including hearings for the receipt of evidence by 
it or by an Administrative Law Judge. Unless otherwise ordered and 
insofar as practicable, hearings before an Administrative Law Judge to 
receive evidence shall be conducted in accordance with subparts B, C, D, 
and E of part 3 of this chapter. Upon conclusion of hearings before an 
Administrative Law Judge, the record and the Administrative Law Judge's 
recommendations shall be certified to the Commission for final 
disposition of the matter.
    (3) Termination of existing orders--(i) Generally. Notwithstanding 
the foregoing provisions of this rule, and except as provided in 
paragraphs (b)(3) (ii) and (iii) of this section, an order issued by the 
Commission before August 16, 1995, will be deemed, without further 
notice or proceedings, to terminate 20 years from the date on which the 
order was first issued, or on January 2, 1996, whichever is later.
    (ii) Exception. This paragraph applies to the termination of an 
order issued before August 16, 1995, where a complaint alleging a 
violation of the order was or is filed (with or without an accompanying 
consent decree) in federal court by the United States or the Federal 
Trade Commission while the order

[[Page 79]]

remains in force, either on or after August 16, 1995, or within the 20 
years preceding that date. If more than one complaint was or is filed 
while the order remains in force, the relevant complaint for purposes of 
this paragraph will be the latest filed complaint. An order subject to 
this paragraph will terminate 20 years from the date on which a court 
complaint described in this paragraph was or is filed, except as 
provided in the following sentence. If the complaint was or is 
dismissed, or a federal court rules or has ruled that the respondent did 
not violate any provision of the order, and the dismissal or ruling was 
or is not appealed, or was or is upheld on appeal, the order will 
terminate according to paragraph (b)(3)(i) of this section as though the 
complaint was never filed; provided, however, that the order will not 
terminate between the date that such complaint is filed and the later of 
the deadline for appealing such dismissal or ruling and the date such 
dismissal or ruling is upheld on appeal. The filing of a complaint 
described in this paragraph will not affect the duration of any order 
provision that has expired, or will expire, by its own terms. The filing 
of a complaint described in this paragraph also will not affect the 
duration of an order's application to any respondent that is not named 
in the complaint.
    (iii) Stay of Termination. Any party to an order may seek to stay, 
in whole or part, the termination of the order as to that party pursuant 
to paragraph (b)(3) (i) or (ii) of this section. Petitions for such 
stays shall be filed in accordance with the procedures set forth in 
Sec.  2.51 of these rules. Such petitions shall be filed on or before 
the date on which the order would be terminated pursuant to paragraph 
(b)(3) (i) or (ii) of this section. Pending the disposition of such a 
petition, the order will be deemed to remain in effect without 
interruption.
    (iv) Orders not terminated. Nothing in Sec.  3.72(b)(3) is intended 
to apply to in camera orders or other procedural or interlocutory 
rulings by an Administrative Law Judge or the Commission.

[32 FR 8449, June 13, 1967, as amended at 44 FR 40637, July 12, 1979; 45 
FR 21623, Apr. 2, 1980; 60 FR 58515, Nov. 28, 1995]



 Subpart I_Recovery of Awards Under the Equal Access to Justice Act in 
                         Commission Proceedings

    Authority: 5 U.S.C. 504 and 5 U.S.C. 553(b).

    Source: 63 FR 36341, July 6, 1998, unless otherwise noted.



Sec.  3.81  General provisions.

    (a) Purpose of these rules. The Equal Access to Justice Act, 5 
U.S.C. 504 (called ``the Act'' in this subpart), provides for the award 
of attorney fees and other expenses to eligible individuals and entities 
who are parties to adversary adjudicative proceedings under part 3 of 
this title. The rules in this subpart describe the parties eligible for 
awards, how to apply for awards, and the procedures and standards that 
the Commission will use to make them.
    (1) When an eligible party will receive an award. An eligible party 
will receive an award when:
    (i) It prevails in the adjudicative proceeding, unless the 
Commission's position in the proceeding was substantially justified or 
special circumstances make an award unjust. Whether or not the position 
of the agency was substantially justified will be determined on the 
basis of the administrative record as a whole that is made in the 
adversary proceeding for which fees and other expenses are sought; or
    (ii) The agency's demand is substantially in excess of the decision 
of the adjudicative officer, and is unreasonable when compared with that 
decision, under all the facts and circumstances of the case. Demand 
means the express final demand made by the agency prior to initiation of 
the adversary adjudication, but does not include a recitation by the 
agency of the statutory penalty in the administrative complaint or 
elsewhere when accompanied by an express demand for a lesser amount.
    (b) When the Act applies. (1) Section 504(a)(1) of the Act applies 
to any adversarial adjudicative proceeding pending before the Commission 
at any time after October 1, 1981. This includes proceedings begun 
before October 1, 1981, if final Commission action has not been taken 
before that date.

[[Page 80]]

    (2) Section 504(a)(4) applies to any adversarial adjudicative 
proceeding pending before the Commission at any time on or after March 
29, 1996.
    (c) Proceedings covered. (1) The Act applies to all adjudicative 
proceedings under part 3 of the rules of practice as defined in Sec.  
3.2, except hearings relating to the promulgation, amendment, or repeal 
of rules under the Fair Packaging and Labeling Act.
    (2) [Reserved]
    (d) Eligibility of applicants. (1) To be eligible for an award of 
attorney fees and other expenses under the Act, the applicant must be a 
party to the adjudicative proceeding in which it seeks an award. The 
term party is defined in 5 U.S.C. 551(3). The applicant must show that 
it meets all conditions of eligibility set out in this subpart.
    (2) The types of eligible applicants are as follows:
    (i) An individual with a net worth of not more than $2 million;
    (ii) the sole owner of an unincorporated business who has a net 
worth of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (iii) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (iv) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees;
    (v) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and not more than 500 employees; and
    (vi) For purposes of receiving an award for fees and expenses for 
defending against an excessive Commission demand, any small entity, as 
that term is defined under 5 U.S.C. 601.
    (3) Eligibility of a party shall be determined as of the date the 
proceeding was initiated.
    (4) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (5) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (6) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the Administrative Law Judge determines that such treatment 
would be unjust and contrary to the purposes of the Act in light of the 
actual relationship between the affiliated entities. In addition, the 
Administrative Law Judge may determine that financial relationships of 
the applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (7) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.
    (e) Standards for awards--(1) For a prevailing party:
    (i) A prevailing applicant will receive an award for fees and 
expenses incurred after initiation of the adversary adjudication in 
connection with the entire adversary adjudication, or on a substantive 
portion of the adversary adjudication that is sufficiently significant 
and discrete to merit treatment as a separate unit unless the position 
of the agency was substantially justified. The burden of proof that an 
award should not be made to an eligible prevailing applicant is on 
complaint counsel, which may avoid an award by showing that its position 
had a reasonable basis in law and fact.
    (ii) An award to prevailing party will be reduced or denied if the 
applicant has unduly or unreasonably protracted

[[Page 81]]

the proceeding or if special circumstances make an award unjust.
    (2) For a party defending against an excessive demand:
    (i) An eligible applicant will receive an award for fees and 
expenses incurred after initiation of the adversary adjudication related 
to defending against the excessive portion of a Commission demand that 
is substantially in excess of the decision of the adjudicative officer 
and is unreasonable when compared with that decision under all the facts 
and circumstances of the case.
    (ii) An award will be denied if the applicant has committed a 
willful violation of law or otherwise acted in bad faith or if special 
circumstances make an award unjust.
    (f) Allowable fees and expenses. (1) Awards will be based on rates 
customarily charged by persons engaged in the business of acting as 
attorneys, agents and expert witnesses, even if the services were made 
available without charge or at a reduced rate to the applicant.
    (2) No award for the fee of an attorney or agent under these rules 
may exceed the hourly rate specified in 5 U.S.C. 504(b)(1)(A). No award 
to compensate an expert witness may exceed the highest rate at which the 
Commission paid expert witnesses for similar services at the time the 
fees were incurred. The appropriate rate may be obtained from the Office 
of the Executive Director. However, an award may also include the 
reasonable expenses of the attorney, agent, or witness as a separate 
item, if the attorney, agent or witness ordinarily charges clients 
separately for such expenses.
    (3) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the Administrative Law Judge shall 
consider the following:
    (i) If the attorney, agent or witness is in private practice, his or 
her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (ii) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (iii) The time actually spent in the representation of the 
applicant;
    (iv) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (v) Such other factors as may bear on the value of the services 
provided.
    (4) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.
    (5) Any award of fees or expenses under the Act is limited to fees 
and expenses incurred after initiation of the adversary adjudication 
and, with respect to excessive demands, the fees and expenses incurred 
in defending against the excessive portion of the demand.
    (g) Rulemaking on maximum rates for attorney fees. If warranted by 
an increase in the cost of living or by special circumstances (such as 
limited availability of attorneys qualified to handle certain types of 
proceedings), the Commission may, upon its own initiative or on petition 
of any interested person or group, adopt regulations providing that 
attorney fees may be awarded at a rate higher than the rate specified in 
5 U.S.C. 504(b)(1)(A) per hour in some or all the types of proceedings 
covered by this part. Rulemaking under this provision will be in 
accordance with Rules of Practice part 1, subpart C of this chapter.



Sec.  3.82  Information required from applicants.

    (a) Contents of application. An application for an award of fees and 
expenses under the Act shall contain the following:
    (1) Identity of the applicant and the proceeding for which the award 
is sought;
    (2) A showing that the applicant has prevailed; or, if the applicant 
has not prevailed, a showing that the Commission's demand was the final 
demand before initiation of the adversary adjudication and that it was 
substantially in excess of the decision of the adjudicative officer and 
was unreasonable when compared with that decision;

[[Page 82]]

    (3) Identification of the Commission position(s) that applicant 
alleges was (were) not substantially justified; or, identification of 
the Commission's demand that is alleged to be excessive and unreasonable 
and an explanation as to why the demand was excessive and unreasonable;
    (4) A brief description of the type and purpose of the organization 
or business (unless the applicant is an individual);
    (5) A statement of how the applicant meets the criteria of Sec.  
3.81(d);
    (6) The amount of fees and expenses incurred after the initiation of 
the adjudicative proceeding or, in the case of a claim for defending 
against an excessive demand, the amount of fees and expenses incurred 
after the initiation of the adjudicative proceeding attributable to the 
excessive portion of the demand;
    (7) Any other matters the applicant wishes the Commission to 
consider in determining whether and in what amount an award should be 
made; and
    (8) A written verification under oath or under penalty or perjury 
that the information provided is true and correct accompanied by the 
signature of the applicant or an authorized officer or attorney.
    (b) Net worth exhibit. (1) Each applicant except a qualified tax-
exempt organization or cooperative association must provide with its 
application a detailed exhibit showing the net worth of the application 
and any affiliates (as defined in Sec.  3.81(d)(6)) when the proceeding 
was initiated. The exhibit may be in any form convenient to the 
applicant that provides full disclosure of the applicant's and its 
affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards in this part. The 
Administrative Law Judge may require an applicant to file additional 
information to determine its eligibility for an award.
    (2) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, if an applicant objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure, the 
applicant may submit that portion of the exhibit directly to the 
Administrative Law Judge in a sealed envelope labeled ``Confidential 
Financial Information,'' accompanied by a motion to withhold the 
information from public disclosure. The motion shall describe the 
information sought to be withheld and explain, in detail, why it falls 
within one or more of the specific exemptions from mandatory disclosure 
under the Freedom of Information Act, 5 U.S.C. 552(b) (1) through (9), 
why public disclosure of the information would adversely affect the 
applicant, and why disclosure is not required in the public interest. 
The material in question shall be served on complaint counsel but need 
not be served on any other party to the proceeding. If the 
Administrative Law Judge finds that the information should not be 
withheld from disclosure, it shall be placed in the public record of the 
proceeding. Otherwise, any request to inspect or copy the exhibit shall 
be disposed of in accordance with Sec.  4.11.
    (c) Documentation of fees and expenses. The application shall be 
accompanied by full documentation of the fees and expenses incurred 
after initiation of the adversary adjudication, including the cost of 
any study, analysis, engineering report, test, project or similar 
matter, for which an award is sought. With respect to a claim for fees 
and expenses involving an excessive demand, the application shall be 
accompanied by full documentation of the fees and expenses incurred 
after initiation of the adversary adjudication, including the cost of 
any study, analysis, engineering report, test, project or similar 
matter, for which an award is sought attributable to the portion of the 
demand alleged to be excessive and unreasonable. A separate itemized 
statement shall be submitted for each professional firm or individual 
whose services are covered by the application, showing the hours spent 
in connection with the proceeding by each individual, a description of 
the specific services performed, the rate at which each fee has been 
computed, any expenses for which reimbursement is sought, the total 
amount claimed, and the total amount paid or payable by the applicant or 
by any other person or entity

[[Page 83]]

for the services provided. The Administrative Law Judge may require the 
applicant to provide vouchers, receipts, or other substantiation for any 
expenses claimed.
    (d) When an application may be filed--(1) For a prevailing party:
    (i) An application may be filed not later than 30 days after the 
Commission has issued an order or otherwise taken action that results in 
final disposition of the proceeding.
    (ii) If review or reconsideration is sought or taken of a decision 
as to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy.
    (2) For a party defending against an excessive demand:
    (i) An application may be filed not later than 30 days after the 
Commission has issued an order or otherwise taken action that results in 
final disposition of the proceeding.
    (ii) If review or reconsideration is sought or taken of a decision 
as to which an applicant believes the agency's demand was excessive and 
unreasonable, proceedings for the award of fees and expenses shall be 
stayed pending final disposition of the underlying controversy.
    (3) For purposes of this subpart, final disposition means the later 
of--
    (i) The date that the initial decision of the Administrative Law 
Judge becomes the decision of the Commission pursuant to Sec.  3.51(a);
    (ii) The date that the Commission issues an order disposing of any 
petitions for reconsideration of the Commission's final order in the 
proceeding; or
    (iii) The date that the Commission issues a final order or any other 
final resolution of a proceeding, such as a consent agreement, 
settlement or voluntary dismissal, which is not subject to a petition 
for reconsideration.



Sec.  3.83  Procedures for considering applicants.

    (a) Filing and service of documents. Any application for an award or 
other pleading or document related to an application shall be filed and 
served on all parties as specified in Sec. Sec.  4.2 and 4.4(b) of this 
chapter, except as provided in Sec.  3.82(b)(2) for confidential 
financial information. The date the Office of the Secretary of the 
Commission receives the application is deemed the date of filing.
    (b) Answer to application. (1) Within 30 days after service of an 
application, complaint counsel may file an answer to the application. 
Unless complaint counsel requests an extension of time for filing or 
files a statement of intent to negotiate under paragraph (b)(2) of this 
section, failure to file an answer within the 30-day period may be 
treated as a consent to the award requested.
    (2) If complaint counsel and the applicant believe that the issues 
in the fee application can be settled, they may jointly file a statement 
of their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing an answer for an additional 30 days, 
and further extensions may be granted by the Administrative Law Judge 
upon request by complaint counsel and the applicant.
    (3) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of complaint 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, complaint counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under paragraph (f) of this section.
    (c) Reply. Within 15 days after service of an answer, the applicant 
may file a reply. If the reply is based on any alleged facts not already 
in the record of the proceeding, the applicant shall include with the 
reply either supporting affidavits or a request for further proceedings 
under paragraph (f) of this section.
    (d) Comments by other parties. Any party to a proceeding other than 
the applicant and complaint counsel may file comments on an application 
within 30 days after it is served or on an answer within 15 days after 
it is served. A commenting party may not participate further in 
proceedings on the application unless the Administrative Law Judge 
determines that the public interest requires such participation in order 
to permit full exploration of matters in the comments.

[[Page 84]]

    (e) Settlement. The applicant and complaint counsel may agree on a 
proposed settlement of the award before final action on the application. 
A proposed award settlement entered into in connection with a consent 
agreement covering the underlying proceeding will be considered in 
accordance with Sec.  3.25. The Commission may request findings of fact 
or recommendations on the award settlement from the Administrative Law 
Judge. A proposed award settlement entered into after the underlying 
proceeding has been concluded will be considered and may be approved or 
disapproved by the Administrative Law Judge subject to Commission review 
under paragraph (h) of this section. If an applicant and complaint 
counsel agree on a proposed settlement of an award before an application 
has been filed, the application shall be filed with the proposed 
settlement.
    (f) Further proceedings. (1) Ordinarily, the determination of an 
award will be made on the basis of the written record. However, on 
request of either the applicant or complaint counsel, or on his or her 
own initiative, the Administrative Law Judge may order further 
proceedings, such as an informal conference, oral argument, additional 
written submissions or an evidentiary hearing. Such further proceedings 
shall be held only when necessary for full and fair resolution of the 
issues arising from the application, and shall be conducted as promptly 
as possible.
    (2) A request that the Administrative Law Judge order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.
    (g) Decision. The Administrative Law Judge shall issue an initial 
decision on the application within 30 days after closing proceedings on 
the application.
    (1) For a decision involving a prevailing party: The decision shall 
include written findings and conclusions on the applicant's eligibility 
and status as a prevailing party, and an explanation of the reasons for 
any difference between the amount requested and the amount awarded. The 
decision shall also include, if at issue, findings on whether the 
agency's position was substantially justified, whether the applicant 
unduly protracted the proceedings, or whether special circumstances make 
an award unjust.
    (2) For a decision involving an excessive agency demand: The 
decision shall include written findings and conclusions on the 
applicant's eligibility and an explanation of the reasons why the 
agency's demand was or was not determined to be substantially in excess 
of the decision of the adjudicative officer and was or was not 
unreasonable when compared with that decision. That decision shall be 
based upon all the facts and circumstances of the case. The decision 
shall also include, if at issue, findings on whether the applicant has 
committed a willful violation of law or otherwise acted in bad faith, or 
whether special circumstances make an award unjust.
    (h) Agency review. Either the applicant or complaint counsel may 
seek review of the initial decision on the fee application by filing a 
notice of appeal under Sec.  3.52(a), or the Commission may decide to 
review the decision on its own initiative, in accordance with Sec.  
3.53. If neither the applicant nor complaint counsel seeks review and 
the Commission does not take review on its own initiative, the initial 
decision on the application shall become a final decision of the 
Commission 30 days after it is issued. Whether to review a decision is a 
matter within the discretion of the Commission. If review is taken, the 
Commission will issue a final decision on the application or remand the 
application to the Administrative Law Judge for further proceedings.
    (i) Judicial review. Judicial review of final Commission decisions 
on awards may be sought as provided in 5 U.S.C. 503(c)(2).
    (j) Payment of award. An applicant seeking payment of an award shall 
submit to the Secretary of the Commission a copy of the Commission's 
final decision granting the award, accompanied by a statement that the 
applicant will not seek review of the decision in the United States 
courts. The agency will pay the amount awarded to the applicant within 
60 days, unless judicial review of the award or of the underlying 
decision of the adjudicative

[[Page 85]]

proceeding has been sought by the applicant or any party to the 
proceeding.



PART 4_MISCELLANEOUS RULES--Table of Contents




Sec.
4.1 Appearances.
4.2 Requirements as to form, and filing of documents other than 
          correspondence.
4.3 Time.
4.4 Service.
4.5 Fees.
4.6 Cooperation with other agencies.
4.7 Ex parte communications.
4.8 Costs for obtaining Commission records.
4.9 The public record.
4.10 Nonpublic material.
4.11 Disclosure requests.
4.12 Disposition of documents submitted to the Commission.
4.13 Privacy Act rules.
4.14 Conduct of business.
4.15 Commission meetings.
4.16 Privilege against self-incrimination.
4.17 Disqualification of Commissioners.

    Authority: 15 U.S.C. 46, unless otherwise noted.



Sec.  4.1  Appearances.

    (a) Qualifications--(1) Attorneys. (i) U.S.-admitted. Members of the 
bar of a Federal court or of the highest court of any State or Territory 
of the United States are eligible to practice before the Commission.
    (ii) European Community (EC)-qualified. Persons who are qualified to 
practice law in a Member State of the European Community and authorized 
to practice before The Commission of the European Communities in 
accordance with Regulation No. 99/63/EEC are eligible to practice before 
the Commission.
    (iii) Any attorney desiring to appear before the Commission or an 
Administrative Law Judge may be required to show to the satisfaction of 
the Commission or the Administrative Law Judge his or her acceptability 
to act in that capacity.
    (2) Others. (i) Any individual or member of a partnership involved 
in any proceeding or investigation may appear on behalf or himself or of 
such partnership upon adequate identification. A corporation or 
association may be represented by a bona fide officer thereof upon a 
showing of adequate authorization.
    (ii) At the request of counsel representing any party in an 
adjudicative proceeding, the Administrative Law Judge may permit an 
expert in the same discipline as an expert witness to conduct all or a 
portion of the cross-examination of such witness.
    (b) Restrictions as to former members and employees--(1) General 
Prohibition. Except as provided in this section, or otherwise 
specifically authorized by the Commission, no former member or employee 
(``former employee'' or ``employee'') of the Commission may communicate 
to or appear before the Commission, as attorney or counsel, or otherwise 
assist or advise behind-the-scenes, regarding a formal or informal 
proceeding or investigation \1\ (except that a former employee who is 
disqualified solely under paragraph (b)(1)(ii) or paragraph (b)(1)(iv) 
of this section, is not prohibited from assisting or advising behind-
the-scenes) if:
---------------------------------------------------------------------------

    \1\ It is important to note that a new ``proceeding or 
investigation'' may be considered the same matter as a seemingly 
separate ``proceeding or investigation'' that was pending during the 
former employee's tenure. This is because a ``proceeding or 
investigation'' may continue in another form or in part. In determining 
whether two matters are actually the same, the Commission will consider: 
the extent to which the matters involve the same or related facts, 
issues, confidential information and parties; the time elapsed; and the 
continuing existence of an important Federal interest. See 5 CFR 
2637.201(c)(4). For example, where a former employee intends to 
participate in an investigation of compliance with a Commission order, 
submission of a request to reopen an order, or a proceeding with respect 
to reopening an order, the matter will be considered the same as the 
adjudicative proceeding or investigation that resulted in the order. A 
former employee who is uncertain whether the matter in which he seeks 
clearance to participate is wholly separate from any matter that was 
pending during his tenure should seek advice from the General Counsel or 
the General Counsel's designee before participating.
---------------------------------------------------------------------------

    (i) The former employee participated personally and substantially on 
behalf of the Commission in the same proceeding or investigation in 
which the employee now intends to participate;
    (ii) The participation would begin within two years after the 
termination of the former employee's service and, within a period of one 
year prior to the

[[Page 86]]

employee's termination, the proceeding or investigation was pending 
under the employee's official responsibility;
    (iii) Nonpublic documents or information pertaining to the 
proceeding or investigation in question, and of the kind delineated in 
Sec.  4.10(a), came to, or would be likely to have come to, the former 
employee's attention in the course of the employee's duties, (unless 
Commission staff determines that the nature of the documents or 
information is such that no present advantage could thereby be derived); 
or
    (iv) The former employee's participation would begin within one year 
after the employee's termination and, at the time of termination, the 
employee was a member of the Commission or a ``senior employee'' as 
defined in 18 U.S.C. 207(c).
    (2) Clearance Request Required. Any former employee, before 
participating in a Commission proceeding or investigation (see footnote 
1), whether through an appearance before a Commission official or 
behind-the-scenes assistance, shall file with the Secretary a request 
for clearance to participate, containing the information listed in Sec.  
4.1(b)(4) if:
    (i) The proceeding or investigation was pending in the Commission 
while the former employee served;
    (ii) A proceeding or investigation from which such proceeding or 
investigation directly resulted was pending during the former employee's 
service; or
    (iii) Nonpublic documents or information pertaining to the 
proceeding or investigation in question, and of the kind delineated in 
Sec.  4.10(a), came to or would likely have come to the former 
employee's attention in the course of the employee's duties, and the 
employee left the Commission within the previous three years.

    Note: This requirement applies even to a proceeding or investigation 
that had not yet been initiated formally when the former employee 
terminated employment, if the employee had learned nonpublic information 
relating to the subsequently initiated proceeding or investigation.

    (3) Exceptions. (i) Paragraphs (b) (1) and (2) of this section do 
not apply to:
    (A) Making a pro se filing of any kind;
    (B) Submitting a request or appeal under the Freedom of Information 
Act, the Privacy Act, or the Government in the Sunshine Act;
    (C) Testifying under oath (except that a former employee who is 
subject to the restrictions contained in paragraph (b)(1)(i) of this 
section with respect to a particular matter may not, except pursuant to 
court order, serve as an expert witness for any person other than the 
United States in that same matter);
    (D) Submitting a statement required to be made under penalty of 
perjury; or
    (E) Appearing on behalf of the United States.
    (ii) With the exception of subparagraph (b)(1)(iv), paragraphs (b) 
(1) and (2) of this section do not apply to participating in a 
Commission rulemaking proceeding, including submitting comments on a 
matter on which the Commission has invited public comment.
    (iii) Paragraph (b)(1)(iv) of this section does not apply to 
submitting a statement based on the former employee's own special 
knowledge in the particular area that is the subject of the statement, 
provided that no compensation is thereby received, other than that 
regularly provided by law or by Sec.  4.5 for witnesses.
    (iv) Paragraph (b)(2) of this section does not apply to filing a 
premerger notification form or participating in subsequent events 
concerning compliance or noncompliance with Section 7A of the Clayton 
Act, 15 U.S.C. 18a, or any regulation issued under that section.
    (4) Request Contents. Clearance requests filed pursuant to Sec.  
4.1(b)(2) shall contain:
    (i) The name and matter number (if known) of the proceeding or 
investigation in question;
    (ii) A description of the contemplated participation;
    (iii) The name of the Commission office(s) or division(s) in which 
the former employee was employed and the position(s) the employee 
occupied;
    (iv) A statement whether, while employed by the Commission, the 
former employee participated in any proceeding or investigation 
concerning

[[Page 87]]

the same company, individual, or industry currently involved in the 
matter in question;
    (v) A certification that while employed by the Commission, the 
employee never participated personally and substantially in the same 
matter or proceeding;
    (vi) If the employee's Commission employment terminated within the 
past two years, a certification that the matter was not pending under 
the employee's official responsibility during any part of the one year 
before the employee's termination;
    (vii) If the employee's Commission employment terminated within the 
past three years, either a declaration that nonpublic documents or 
information pertaining to the proceeding or investigation in question, 
and of the kind delineated in Sec.  4.10(a), never came to the 
employee's attention, or a description of why the employee believes that 
such nonpublic documents or information could not confer a present 
advantage to the employee or to the employee's client in the proceeding 
or investigation in question; and
    (viii) A certification that the employee has read, and understands, 
both the criminal conflict of interest law on post-employment activities 
(18 U.S.C. 207) and this Rule in their entirety.
    (5) Definitions. The following definitions apply for purposes of 
this section:
    (i) Behind-the-scenes participation includes any form of 
professional consultation, assistance, or advice to anyone about the 
proceeding or investigation in question, whether formal or informal, 
oral or written, direct or indirect.
    (ii) Communicate to or appear before means making any oral or 
written communication to, or any formal or informal appearance before, 
the Commission or any of its members or employees on behalf of any 
person (except the United States) with the intent to influence.
    (iii) Directly resulted from means that the proceeding or 
investigation in question emanated from an earlier phase of the same 
proceeding or investigation or from a directly linked, antecedent 
investigation. The existence of some attenuated connection between a 
proceeding or investigation that was pending during the requester's 
tenure and the proceeding or investigation in question does not 
constitute a direct result.
    (iv) Pending under the employee's official responsibility means that 
the former employee had the direct administrative or operating authority 
to approve, disapprove, or otherwise direct official actions in the 
proceeding or investigation, irrespective of whether the employee's 
authority was intermediate or final, and whether it was exercisable 
alone or only in conjunction with others.
    (v) Personal and substantial participation. A former employee 
participated in the proceeding or investigation personally if the 
employee either participated directly or directed a subordinate in doing 
so. The employee participated substantially if the involvement was 
significant to the matter or reasonably appeared to be significant. A 
series of peripheral involvements may be considered insubstantial, while 
a single act of approving or participating in a critical step may be 
considered substantial.
    (vi) Present advantage. Whether exposure to nonpublic information 
about the proceeding or investigation could confer a present advantage 
to a former employee will be analyzed and determined on a case-by-case 
basis. Relevant factors include, inter alia, the nature and age of the 
information, its relation and current importance to the proceeding or 
investigation in question, and the amount of time that has passed since 
the employee left the Commission.
    (vii) Proceeding or investigation shall be interpreted broadly and 
includes an adjudicative or other proceeding; the consideration of an 
application; a request for a ruling or other determination; a contract; 
a claim; a controversy; an investigation; or an interpretive ruling.
    (6) Advice as to Whether Clearance Request is Required. A former 
employee may ask the General Counsel, either orally or in writing, 
whether the employee is required to file a request for clearance to 
participate in a Commission matter pursuant to paragraph (b)(2) of this 
section. The General

[[Page 88]]

Counsel, or the General Counsel's designee, will make any such 
determination within three business days.
    (7) Deadline for Determining Clearance Requests. By the close of the 
tenth business day after the date on which the clearance request is 
filed, the General Counsel, or the General Counsel's designee, will 
notify the requester either that:
    (i) the request for clearance has been granted;
    (ii) the General Counsel or the General Counsel's designee has 
decided to recommend that the Commission prohibit the requester's 
participation; or
    (iii) the General Counsel or the General Counsel's designee is, for 
good cause, extending the period for reaching a determination on the 
request by up to an additional ten business days.
    (8) Participation of Partners or Associates of Former Employees. (i) 
If a former employee is prohibited from participating in a proceeding or 
investigation by virtue of having worked on the matter personally and 
substantially while a Commission employee, no partner or legal or 
business associate of that individual may participate except after 
filing with the Secretary of the Commission an affidavit attesting that:
    (A) The former employee will not participate in the proceeding or 
investigation in any way, directly or indirectly (and describing how the 
former employee will be screened from participating);
    (B) The former employee will not share in any fees resulting from 
the participation;
    (C) Everyone who intends to participate is aware of the requirement 
that the former employee be screened;
    (D) The client(s) have been informed; and
    (E) The matter was not brought to the participant(s) through the 
active solicitation of the former employee.
    (ii) If the Commission finds that the screening measures being taken 
are unsatisfactory or that the matter was brought to the participant(s) 
through the active solicitation of the former employee, the Commission 
will notify the participant(s) to cease the representation immediately.
    (9) Effect on Other Standards. The restrictions and procedures in 
this section are intended to apply in lieu of restrictions and 
procedures that may be adopted by any state or jurisdiction, insofar as 
such restrictions and procedures apply to appearances or participation 
in Commission proceedings or investigations. Nothing in this section 
supersedes other standards of conduct applicable under paragraph (e) of 
this section. Requests for advice about this section, or about any 
matter related to other applicable rules and standards of ethical 
conduct, shall be directed to the Office of the General Counsel.
    (c) Public Disclosure. Any request for clearance filed by a former 
member or employee pursuant to this section, as well as any written 
response, are part of the public records of the Commission, except for 
information exempt from disclosure under Sec.  4.10(a) of this chapter. 
Information identifying the subject of a nonpublic Commission 
investigation will be redacted from any request for clearance or other 
document before it is placed on the public record.
    (d) Notice of appearance. Any attorney desiring to appear before the 
Commission or an Administrative Law Judge on behalf of a person or party 
shall file with the Secretary of the Commission a written notice of 
appearance, stating the basis for eligibility under this section and 
including the attorney's jurisdiction of admission/qualification, 
attorney identification number, if applicable, and a statement by the 
appearing attorney attesting to his/her good standing within the legal 
profession. No other application shall be required for admission to 
practice, and no register of attorneys will be maintained.
    (e) Standards of conduct; disbarment. (1) All attorneys practicing 
before the Commission shall conform to the standards of ethical conduct 
required by the bars of which the attorneys are members.
    (2) If for good cause shown, the Commission shall be of the opinion 
that any attorney is not conforming to such standards, or that he has 
been otherwise guilty of conduct warranting disciplinary action, the 
Commission may issue an order requiring such attorney to show cause why 
he should not be suspended or disbarred from practice

[[Page 89]]

before the Commission. The alleged offender shall be granted due 
opportunity to be heard in his own defense and may be represented by 
counsel. Thereafter, if warranted by the facts, the Commission may issue 
against the attorney an order of reprimand, suspension, or disbarment.

[32 FR 8456, June 13, 1967, as amended at 40 FR 15235, Apr. 4, 1975; 41 
FR 16453, Apr. 19, 1976; 46 FR 26295, May 12, 1981; 48 FR 44767, Sept. 
30, 1983; 50 FR 50781, Dec. 12, 1985; 50 FR 53306, Dec. 31, 1985; 56 FR 
44139, Sept. 27, 1991; 58 FR 40737, July 30, 1993; 63 FR 15758, Apr. 1, 
1998; 64 FR 14830, Mar. 29, 1999; 66 FR 13645, Mar. 7, 2001; 66 FR 
64143, Dec. 12, 2001]



Sec.  4.2  Requirements as to form, and filing of documents other than correspondence.

    (a) Filing. (1) Except as otherwise provided, all documents 
submitted to the Commission, including those addressed to the 
Administrative Law Judge, shall be filed with the Secretary of the 
Commission; Provided, however, That informal applications or requests 
may be submitted directly to the official in charge of any Bureau, 
Division, or Office of the Commission, or to the Administrative Law 
Judge.
    (2) Documents submitted to the Commission in response to a Civil 
Investigative Demand under section 20 of the FTC Act shall be filed with 
the custodian or deputy custodian named in the demand.
    (b) Title. Documents shall clearly show the file or docket number 
and title of the action in connection with which they are filed.
    (c) Paper and electronic copies of and service of filings before the 
Commission, and of filings before an ALJ in adjudicative proceedings. 
(1) Except as otherwise provided, each document filed before the 
Commission, whether in an adjudicative or a nonadjudicative proceeding, 
shall be filed with Secretary of the Commission, and shall include a 
paper original, twelve (12) paper copies, and an electronic copy (in 
ASCII format, WordPerfect, or Microsoft Word). Except as otherwise 
provided, each document filed by a party in an adjudicative proceeding 
before an ALJ shall be filed with the Secretary of the Commission, and 
shall include a paper original, one (1) paper copy and an electronic 
copy (in ASCII format, WordPerfect, or Microsoft Word).
    (2) The first page of the paper original of each such document shall 
be clearly labeled either public, or in camera or confidential. If the 
document is labeled in camera or confidential, it must include as an 
attachment either a motion requesting in camera or otherwise 
confidential treatment, in the form prescribed by Sec.  3.45(b), or a 
copy of a Commission, ALJ, or federal court order granting such 
treatment. The document must also include as a separate attachment a set 
of only those pages of the document on which the in camera or otherwise 
confidential material appears.
    (3) The electronic copy of each such public document shall be filed 
by e-mail, as the Secretary shall direct, in a manner that is consistent 
with technical standards, if any, that the Judicial Conference of the 
United States establishes, except that the electronic copy of each such 
document containing in camera or otherwise confidential material shall 
be placed on a diskette so labeled, which shall be physically attached 
to the paper original, and not transmitted by e-mail. The electronic 
copy of all documents shall include a certification by the filing party 
that the copy is a true and correct copy of the paper original, and that 
a paper copy with an original signature is being filed with the 
Secretary of the Commission on the same day by other means.
    (4) A paper copy of each such document in an adjudicative proceeding 
shall be served by the party filing the document or person acting for 
that party on all other parties pursuant to Sec.  4.4, at or before the 
time the paper original is filed.
    (d) Paper and electronic copies of all other documents filed with 
the Commission. Except as otherwise provided, each document to which 
paragraph (c) of this section does not apply, such as public comments in 
Commission proceedings, may be filed with the Commission in either paper 
or electronic form. If such a document contains nonpublic information, 
it must be filed in paper form with the Secretary of the Commission, and 
the first page of the

[[Page 90]]

document must be clearly labeled confidential. If the document does not 
contain any nonpublic information, it may instead be filed in electronic 
form (in ASCII format, WordPerfect, or Microsoft Word) by e-mail, as the 
Commission or the Secretary may direct.
    (e) Form. (1) Documents filed with the Secretary of the Commission, 
other than briefs in support of appeals from initial decisions, shall be 
printed, typewritten, or otherwise processed in permanent form and on 
good unglazed paper. A motion or other paper filed in an adjudicative 
proceeding shall contain a caption setting forth the title of the case, 
the docket number, and a brief descriptive title indicating the purpose 
of the paper.
    (2) Briefs filed on an appeal from an initial decision shall be in 
the form prescribed by Sec.  3.52(e).
    (f) Signature. (1) The original of each document filed shall have a 
hand signed signature by an attorney of record for the party, or in the 
case of parties not represented by counsel, by the party itself, or by a 
partner if a partnership, or by an officer of the party if it is a 
corporation or an unincorporated association.
    (2) Signing a document constitutes a representation by the signer 
that he or she has read it; that to the best of his or her knowledge, 
information, and belief, the statements made in it are true; that it is 
not interposed for delay; and that to the best of his or her knowledge, 
information, and belief, it complies with the rules in this part. If a 
document is not signed or is signed with intent to defeat the purpose of 
this section, it may be stricken as sham and false and the proceeding 
may go forward as though the document had not been filed.
    (g) Authority to reject documents for filing. The Secretary of the 
Commission may reject a document for filing that fails to comply with 
the Commission's rules. In cases of extreme hardship, the Secretary may 
excuse compliance with a rule regarding the filing of documents if the 
Secretary determines that the non-compliance would not interfere with 
the functions of the Commission.

[66 FR 17632, Apr. 3, 2001; 66 FR 20527, Apr. 23, 2001]



Sec.  4.3  Time.

    (a) Computation. Computation of any period of time prescribed or 
allowed by the rules in this chapter, by order of the Commission or an 
Administrative Law Judge, or by any applicable statute, shall begin with 
the first business day following that on which the act, event, or 
development initiating such period of time shall have occurred. When the 
last day of the period so computed is a Saturday, Sunday, or national 
holiday, or other day on which the office of the Commission is closed, 
the period shall run until the end of the next following business day. 
When such period of time, with the intervening Saturdays, Sundays, and 
national holidays counted, is seven (7) days or less, each of the 
Saturdays, Sundays, and such holidays shall be excluded from the 
computation. When such period of time, with the intervening Saturdays, 
Sundays, and national holidays counted, exceeds seven (7) days, each of 
the Saturdays, Sundays, and such holidays shall be included in the 
computation.
    (b) Extensions. For good cause shown, the Administrative Law Judge 
may, in any proceeding before him, extend any time limit prescribed or 
allowed by the rules in this chapter or by order of the Commission or 
the Administrative Law Judge, except those governing the filing of 
interlocutory appeals and initial decisions and those expressly 
requiring Commission action. Except as otherwise provided by law, the 
Commission, for good cause shown, may extend any time limit prescribed 
by the rules in this chapter or by order of the Commission or an 
Administrative Law Judge: Provided, however, That in a proceeding 
pending before an Administrative Law Judge, any motion on which he may 
properly rule shall be made to him. Notwithstanding the above, where a 
motion to extend is made after the expiration of the specified period, 
the Administrative Law Judge or the Commission may consider the motion 
where the untimely filing was the result of excusable neglect.
    (c) Additional time after service by mail. Whenever a party in an 
adjudicative proceeding under part 3 of the rules is required or 
permitted to do an act within a prescribed period after service

[[Page 91]]

of a paper upon it and the paper is served by first-class mail pursuant 
to Sec.  4.4(a)(3) or Sec.  4.4(b), 3 days shall be added to the 
prescribed period.
    (d) Date of filing. Documents must be received in the office of the 
Secretary of the Commission by 5:00 p.m. Eastern time to be deemed filed 
that day. Any documents received by the agency after 5:00 p.m. will be 
deemed filed the following business day.

[32 FR 8456, June 13, 1967, as amended at 42 FR 30150, June 13, 1977; 50 
FR 28097, July 10, 1985; 50 FR 53306, Dec. 31, 1985; 66 FR 17633, Apr. 
3, 2001]



Sec.  4.4  Service.

    (a) By the Commission. (1) Service of complaints, initial decisions, 
final orders and other processes of the Commission under 15 U.S.C. 45 
may be effected as follows:
    (i) By registered or certified mail. A copy of the document shall be 
addressed to the person, partnership, corporation or unincorporated 
association to be served at his, her or its residence or principal 
office or place of business, registered or certified, and mailed; 
service under this provision is complete upon delivery of the document 
by the Post Office; or
    (ii) By delivery to an individual. A copy thereof may be delivered 
to the person to be served, or to a member of the partnership to be 
served, or to the president, secretary, or other executive officer or a 
director of the corporation or unincorporated association to be served; 
service under this provision is complete upon delivery as specified 
herein; or
    (iii) By delivery to an address. A copy thereof may be left at the 
principal office or place of business of the person, partnership, 
corporation, or unincorporated association, or it may be left at the 
residence of the person or of a member of the partnership or of an 
executive officer or director of the corporation, or unincorporated 
association to be served; service under this provision is complete upon 
delivery as specified herein.
    (2) All other orders and notices, including subpoenas, orders 
requiring access, orders to file annual and special reports, and notices 
of default, may be served by any method reasonably certain to inform the 
affected person, partnership, corporation or unincorporated association, 
including any method specified in paragraph (a)(1), except that civil 
investigative demands may only be served in the manner provided by 
section 20(c)(7) of the FTC Act (in the case of service on a 
partnership, corporation, association, or other legal entity) or section 
20(c)(8) of the FTC Act (in the case of a natural person). Service under 
this provision is complete upon delivery by the Post Office or upon 
personal delivery.
    (3) All documents served in adjudicative proceedings under the 
Commission's Rules of Practice, 16 CFR Part 3, other than complaints and 
initial, interlocutory, and final decisions and orders, may be served by 
personal delivery (including delivery by courier), or by first-class 
mail, and shall be deemed served on the day of personal delivery or the 
day of mailing.
    (4) When a party has appeared in a proceeding by an attorney, 
service on that individual of any document pertaining to the proceeding 
other than a complaint shall be deemed service upon the party. However, 
service of those documents specified in paragraph (a)(1) of this section 
shall first be attempted in accordance with the provision of paragraphs 
(a)(1) (i), (ii), and (iii) of this section.
    (b) By other parties. Service of documents by parties other than the 
Commission shall be by delivering copies thereof as follows: Upon the 
Commission, by personal delivery (including delivery by courier) or 
delivery by first-class mail to the Office of the Secretary of the 
Commission and, in adjudicative proceedings under the Commission's Rules 
of Practice, 16 CFR Part 3, to the lead complaint counsel, the Assistant 
Director in the Bureau of Competition, the Associate Director in the 
Bureau of Consumer Protection, or the Director of the Regional Office of 
complaint counsel, with a copy to the Administrative Law Judge. Upon a 
party other than the Commission or Commission counsel, service shall be 
by personal delivery (including delivery by courier) or delivery by 
first-class mail with a copy to the Administrative Law Judge. If the 
party is an individual or partnership, delivery

[[Page 92]]

shall be to such individual or a member of the partnership; if a 
corporation or unincorporated association, to an officer or agent 
authorized to accept service of process therefor. Personal service 
includes handling the document to be served to the individual, partner, 
officer, or agent; leaving it at his or her office with a person in 
charge thereof; or, if there is no one in charge or if the office is 
closed or if the party has no office, leaving it at his or her dwelling 
house or usual place of abode with some person of suitable age and 
discretion then residing therein. Documents served in adjudicative 
proceedings under part 3 of the Commission's Rules of Practice shall be 
deemed served on the day of personal service or the day of mailing. All 
other documents shall be deemed served on the day of personal service or 
on the day of delivery by the Post Office.
    (c) Proof of service. In an adjudicative proceeding under the 
Commission's Rules of Practice, 16 CFR Part 3, papers presented for 
filing shall contain proof of service in the form of a statement of the 
date and manner of service and of the names of the persons served, 
certified by the person who made service. Proof of service must appear 
on or be affixed to the papers filed.

[50 FR 28097, July 10, 1985, as amended at 66 FR 17633, Apr. 3, 2001; 66 
FR 20527, Apr. 23, 2001]



Sec.  4.5  Fees.

    (a) Deponents and witnesses. Any person compelled to appear in 
person in response to subpoena shall be paid the same fees and mileage 
as are paid witnesses in the courts of the United States.
    (b) Presiding officers. Officers before whom depositions are taken 
shall be entitled to the same fees as are paid for like services in the 
courts of the United States.
    (c) Responsibility. The fees and mileage referred to in this section 
shall be paid by the party at whose instance deponents or witnesses 
appear.

[32 FR 8456, June 13, 1967]



Sec.  4.6  Cooperation with other agencies.

    It is the policy of the Commission to cooperate with other 
governmental agencies to avoid unnecessary overlapping or duplication of 
regulatory functions.

[32 FR 8456, June 13, 1967]



Sec.  4.7  Ex parte communications.

    (a) Definitions. For purposes of this section, ex parte 
communication means an oral or written communication not on the public 
record with respect to which reasonable prior notice to all parties is 
not given, but it shall not include requests for status reports on any 
matter or proceeding.
    (b) Prohibited ex parte communications. While a proceeding is in 
adjudicative status within the Commission, except to the extent required 
for the disposition of ex parte matters as authorized by law:
    (1) No person not employed by the Commission, and no employee or 
agent of the Commission who performs investigative or prosecuting 
functions in adjudicative proceedings, shall make or knowingly cause to 
be made to any member of the Commission, or to the Administrative Law 
Judge, or to any other employee who is or who reasonably may be expected 
to be involved in the decisional process in the proceeding, an ex parte 
communciation relevant to the merits of that or a factually related 
proceeding; and
    (2) No member of the Commission, the Administrative Law Judge, or 
any other employee who is or who reasonably may be expected to be 
involved in the decisional process in the proceeding, shall make or 
knowingly cause to be made to any person not employed by the Commission, 
or to any employee or agent of the Commission who performs investigative 
or prosecuting functions in adjudicative proceedings, an ex parte 
communication relevant to the merits of that or a factually related 
proceeding.
    (c) Procedures. A Commissioner, the Administrative Law Judge or any 
other employee who is or who may reasonably be expected to be involved 
in the decisional process who receives or who make or knowingly causes 
to be made, a communication prohibited by paragraph (b) of this section 
shall promptly provide to the Secretary of the Commission:
    (1) All such written communications;

[[Page 93]]

    (2) Memoranda stating the substance of and circumstances of all such 
oral communications; and
    (3) All written responses, and memoranda stating the substance of 
all oral responses, to the materials described in paragraphs (c) (1) and 
(2) of this section. The Secretary shall make relevant portions of any 
such materials part of the public record of the Commission, pursuant to 
Sec.  4.9, and place them in the docket binder of the proceeding to 
which it pertains, but they will not be considered by the Commission as 
part of the record for purposes of decision unless introduced into 
evidence in the proceeding. The Secretary shall also send copies of the 
materials to or otherwise notify all parties to the proceeding.
    (d) Sanctions. (1) Upon receipt of an ex parte communication 
knowingly made or knowingly caused to be made by a party and prohibited 
by paragraph (b) of this section, the Commission, Administrative Law 
Judge, or other employee presiding over the proceeding may, to the 
extent consistent with the interests of justice and the policy of the 
underlying statutes administered by the Commission, require the party to 
show cause why his claim or interest in the proceeding should not be 
dismissed, denied, disregarded, or otherwise adversely affected on 
account of such violation. The Commission may take such action as it 
considers appropriate, including but not limited to, action under Sec.  
4.1(e)(2) and 5 U.S.C. 556(d).
    (2) A person, not a party to the proceeding who knowingly makes or 
causes to be made an ex parte communication prohibited by paragraph (b) 
of this section shall be subject to all sanctions provided herein if he 
subsequently becomes a party to the proceeding.
    (e) The prohibitions of this section shall apply in an adjudicative 
proceeding from the time the Commission votes to issue a complaint 
pursuant to Sec.  3.11, to conduct adjudicative hearings pursuant to 
Sec.  3.13, or to issue an order to show cause pursuant to Sec.  
3.72(b), or from the time an order by a U.S. court of appeals remanding 
a Commission decision and order for further proceedings becomes 
effective, until the time the Commission votes to enter its decision in 
the proceeding and the time permitted by Sec.  3.55 to seek 
reconsideration of that decision has elapsed. For purposes of this 
section, an order of remand by a U.S. court of appeals shall be deemed 
to become effective when the Commission determines not to file a 
petition for a writ of certiorari, or when the time for filing such a 
petition has expired without a petition having been filed, or when such 
a petition has been denied. If a petition for reconsideration of a 
Commission decision is filed pursuant to Sec.  3.55, the provisions of 
this section shall apply until the time the Commission votes to enter an 
order disposing of the petition. In addition, the prohibitions of this 
section shall apply with respect to communications concerning an 
application for stay filed with the Commission pursuant to Sec.  3.56 
from the time that the application is filed until its disposition.
    (f) The prohibitions of paragraph (b) of this section do not apply 
to a communication occasioned by and concerning a nonadjudicative 
function of the Commission, including such functions as the initiation, 
conduct, or disposition of a separate investigation, the issuance of a 
complaint, or the initiation of a rulemaking or other proceeding, 
whether or not it involves a party already in an adjudicative 
proceeding; preparations for judicial review of a Commission order; a 
proceeding outside the scope of Sec.  3.2, including a matter in state 
or federal court or before another governmental agency; a 
nonadjudicative function of the Commission, including but not limited to 
an obligation under Sec.  4.11 or a communication with Congress; or the 
disposition of a consent settlement under Sec.  3.25 concerning some or 
all of the charges involved in a complaint and executed by some or all 
respondents. The Commission, at its discretion and under such 
restrictions as it may deem appropriate, may disclose to the public or 
to respondent(s) in a pending adjudicative proceeding a communication 
made exempt by this paragraph from the prohibitions of paragraph (b) of 
this section, however, when the Commission determines that the interests 
of justice would be served by the disclosure. The prohibitions of 
paragraph (b) of this section also do not

[[Page 94]]

apply to a communication between any member of the Commission, the 
Administrative Law Judge, or any other employee who is or who reasonably 
may be expected to be involved in the decisional process, and any 
employee who has been directed by the Commission or requested by an 
individual Commissioner or Administrative Law Judge to assist in the 
decision of the adjudicative proceeding. Such employee shall not, 
however, have performed an investigative or prosecuting function in that 
or a factually related proceeding.

[42 FR 43974, Sept. 1, 1977, as amended at 44 FR 40637, July 12, 1979; 
46 FR 32435, June 23, 1981; 50 FR 53306, Dec. 31, 1985; 51 FR 36802, 
Oct. 16, 1986; 57 FR 10805, Mar. 31, 1992; 60 FR 37748, July 21, 1995; 
60 FR 67325, Dec. 29, 1995]



Sec.  4.8  Costs for obtaining Commission records.

    (a) Definitions. For the purpose of this section:
    (1) The term search includes all time spent looking, manually or by 
automated means, for material that is responsive to a request, including 
page-by-page or line-by-line identification of material within 
documents.
    (2) The term duplication refers to the process of making a copy of a 
document in order to respond to a request for Commission records.
    (3) The term review refers to the examination of documents located 
in response to a request to determine whether any portion of such 
documents may be withheld, and the reduction or other processing of 
documents for disclosure. Review does not include time spent resolving 
general legal or policy issues regarding the release of the document.
    (4) The term direct costs means expenditures that the Commission 
actually incurs in processing requests. Not included in direct costs are 
overhead expenses such as costs of document review facilities or the 
costs of heating or lighting such a facility or other facilities in 
which records are stored. The direct costs of specific services are set 
forth in Sec.  4.8(b)(6).
    (b) Fees. User fees pursuant to 31 U.S.C. 483(a) and 5 U.S.C. 552(a) 
shall be charged according to this paragraph.
    (1) Commercial use requesters. Commercial use requesters will be 
charged for the direct costs to search for, review, and duplicate 
documents. A commercial use requester is a requester who seeks 
information for a use or purpose that furthers the commercial, trade, or 
profit interests of the requester or the person on whose behalf the 
request is made.
    (2) Educational requesters, non-commercial scientific institution 
requesters, and representative of the news media. Requesters in these 
categories will be charged for the direct costs to duplicate documents, 
excluding charges for the first 100 pages. An educational institution is 
a preschool, a public or private elementary or secondary school, an 
institution of graduate higher education, an institution of 
undergraduate higher education, an institution of professional 
education, and an institution of vocational education, which operates a 
program or programs of scholarly research. A non-commercial scientific 
institution is an institution that is not operated on a commercial basis 
as that term is referenced in paragraph (b)(1) of this section, and that 
is operated solely to conduct scientific research the results of which 
are not intended to promote any particular product or industry. A 
representative of the news media is any person actively gathering news 
for an entity that is organized and operated to publish or broadcast 
news to the public. News means information that is about current events 
or that would be of current interest to the public.
    (3) Other requesters. Other requesters will be charged for the 
direct costs to search for and duplicate documents, except that the 
first 100 pages of duplication and the first two hours of search time 
shall be furnished without charge.
    (4) Waiver of small charges. Notwithstanding the provisions of 
paragraphs (b)(1), (2), and (3) of this section, charges will be waived 
if the total chargeable fees for a request do not exceed $14.00.
    (5) Materials available without charge. These provisions do not 
apply to recent Commission decisions and other materials that may be 
made available to all requesters without charge while supplies last.

[[Page 95]]

    (6) Schedule of direct costs. The following uniform schedule of fees 
applies to records held by all constituent units of the Commission:

 
 
 
Paper Fees:
    Paper copy (up to 8.5x14).
    Reproduced by Commission...............  $0.14 per page.
    Reproduced by Requester................   0.05 per page.
 
Microfiche Fees:
    Film Copy--Paper to 16mm film..........   0.04 per frame.
    Fiche Copy--Paper to 105mm fiche.......   0.08 per frame.
    Film Copy--Duplication of existing 100    9.50 per roll.
     ft. roll of 16mm film.
    Fiche Copy--Duplication of existing       0.26 per fiche.
     105mm fiche.
    Paper Copy--Converting existing 16mm      0.26 per page.
     film to paper (Conversion by
     Commission Staff).
    Paper Copy--Converting existing 105mm     0.23 per page.
     fiche to paper (Conversion by
     Commission Staff).
    Film Cassettes.........................   2.00 per cassette.
 
Electronic Services:
    Converting paper into electronic format   2.50 per page.
     (scanning).
    Computer programming...................   8.00 per qtr. hour.
 
Other Fees:
    Computer Tape..........................   18.50 each.
    Certification..........................   10.35 each.
    Express Mail...........................   3.50 for first pound and
                                              3.67 for each additional
                                              pound (up to $15.00).
 

                         Search and Review Fees

    Agency staff is divided into three categories: clerical, attorney/
economist, and other professional. Fees for search and review are 
assessed on a quarter-hourly basis, and are determined by identifying 
the category into which the staff member(s) conducting the search or 
review belong(s), determining the average quarter-hourly wages of all 
staff members within that category, and adding 16 percent to reflect the 
cost of additional benefits accorded to government employees. The exact 
fees are calculated and announced periodically and are available from 
the Consumer Response Center, Federal Trade Commission, 600 Pennsylvania 
Avenue, NW., Washington, DC 20580; (202) 326-2222.
    (c) Information to determine fees. Each request for records shall 
set forth whether the request is made for other than commercial purposes 
and whether the requester is an educational institution, a noncommercial 
scientific institution, or a representative of the news media. The 
deciding official (as designated by the General Counsel) initially, or 
the General Counsel on appeal, will use this information, any additional 
information provided by the requester, and any other relevant 
information to determine the appropriate fee category in which to place 
the requester.
    (d) Agreement to pay fees. (1) Each request that does not contain an 
application for a fee waiver shall specifically indicate the requester's 
willingness either:
    (i) To pay, in accordance with Sec.  4.8(b) of these rules, whatever 
fees may be charged for processing the request; or
    (ii) A willingness to pay such fees up to a specified amount.
    (2) Each request that contains an application for a fee waiver must 
specifically indicate:
    (i) The requester's willingness to pay, in accordance with Sec.  
4.8(b) of the rules, whatever fees may be charged for processing the 
request;
    (ii) The requester's willingness to pay fees up to a specified 
amount; or
    (iii) That the requester is not willing to pay fees if the waiver is 
not granted.
    (3) If the agreement required by this section is absent, and if the 
estimated fees exceed $25.00, the requester will be advised of the 
estimated fees and the

[[Page 96]]

request will not be processed until the requester agrees to pay such 
fees.
    (e) Public interest fee waivers--(1) Procedures. A requester may 
apply for a waiver of fees. The requester shall explain why a waiver is 
appropriate under the standards set forth in this paragraph. The 
application shall also include a statement, as provided by paragraph (d) 
of this section, of whether the requester agrees to pay costs if the 
waiver is denied. The deciding official (as designated by the General 
Counsel) initially, or the General Counsel on appeal, will rule on 
applications for fee waivers.
    (2) Standards. (i) The first requirement for a fee waiver is that 
disclosure will likely contribute significantly to public understanding 
of the operations or activities of the government. This requirement 
shall be met if:
    (A) The subject matter of the requested information concerns the 
operations or activities of the Federal government;
    (B) The disclosure is likely to contribute to an understanding of 
these operations or activities;
    (C) The understanding to which disclosure is likely to contribute is 
the understanding of the public at large, as opposed to the 
understanding of the individual requester or a narrow segment of 
interested persons; and
    (D) The likely contribution to public understanding will be 
significant.
    (ii) The second requirement for a fee waiver is that the request not 
be primarily in the commercial interest of the requester. Satisfaction 
of this requirement shall be determined by considering:
    (A) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and
    (B) If so, whether the public interest in disclosure is outweighed 
by the identified commercial interest of the requester so as to render 
the disclosure primarily in the requester's commercial interest.
    (f) Unsuccessful searches. Charges may be assessed for search time 
even if the agency fails to locate any responsive records or if it 
locates only records that are determined to be exempt from disclosure.
    (g) Aggregating requests. If the deciding official (as designated by 
the General Counsel) initially, or the General Counsel on appeal, 
reasonably believes that a requester, or a group of requesters acting in 
concert, is attempting to evade an assessment of fees by dividing a 
single request into a series of smaller requests, the requests may be 
aggregated and fees charged accordingly.
    (h) Advance payment. If the deciding official (as designated by the 
General Counsel) initially, or the General Counsel on appeal, estimates 
or determines that allowable charges that a requester may be required to 
pay are likely to exceed $250.00, or if the requester has previously 
failed to pay a fee within 30 days of the date of billing, the requester 
may be required to pay some or all of the total estimated charge in 
advance. Further, the requester may be required to pay all unpaid bills, 
including accrued interest, prior to processing the request.
    (i) Means of payment. Payment shall be made by check or money order 
payable to the Treasury of the United States.
    (j) Interest charges. The Commission will begin assessing interest 
charges on an unpaid bill starting on the 31st day following the day on 
which the bill was sent. Interest will accrue from the date of the 
billing, and will be calculated at the rate prescribed in 31 U.S.C. 
3717.
    (k) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365) The 
Commission may pursue repayment, where appropriate, by employing the 
provisions of the Debt Collection Act, Public Law 97-365), including 
disclosure to consumer reporting agencies and use of collection 
agencies.

[57 FR 10806, Mar. 31, 1992, as amended at 63 FR 45646, Aug. 26, 1998; 
64 FR 3012, Jan. 20, 1999; 66 FR 64144, Dec. 12, 2001]



Sec.  4.9  The public record.

    (a) General. (1) Materials on the public record of the Commission 
are available for public inspection and copying either routinely or upon 
request.
    (2) Materials that are exempt from mandatory public disclosure, or 
are otherwise not available from the Commission's public record, may be 
made available for inspection and copying only upon request under the 
procedures

[[Page 97]]

set forth in Sec.  4.11 of this part, or as provided in Sec. Sec.  4.10 
(d) through (g), 4.13, and 4.15(b)(3) of this part, or by the 
Commission.
    (3) Location. All of the public records of the Commission are 
available for inspection at the principal office of the Commission on 
each business day from 9 a.m. to 5 p.m., and copies of some of those 
records are available at the regional offices on each business day from 
8:30 a.m. to 5 p.m. Copies of records that the Commission is required to 
make available to the public electronically, pursuant to 5 U.S.C. 
552(a)(2), may be obtained in that format from the Commission's Web site 
on the Internet, WWW.FTC.GOV.
    (4) Copying of public records--(i) Procedures. Reasonable facilities 
for copying public records are provided at each office of the 
Commission. Subject to appropriate limitations and the availability of 
facilities, any person may copy public records available for inspection 
at each of those offices. Further, the agency will provide copies to any 
person upon request. Written requests for copies of public records shall 
be addressed to the Supervisor, Consumer Response Center, and shall 
specify as clearly and accurately as reasonably possible the records 
desired. For records that cannot be specified with complete clarity and 
particularity, requesters shall provide descriptions sufficient to 
enable qualified Commission personnel to locate the records sought. In 
any instance, the Commission, the Supervisor of the Consumer Response 
Center, the General Counsel, the deciding official (as designated by the 
General Counsel), or the official in charge of each office may prohibit 
the use of Commission facilities to produce more than one copy of any 
public record, and may refuse to permit the use of such facilities for 
copying records that have been published or are publicly available at 
places other than the offices of the Commission.
    (ii) Costs; agreement to pay costs. Requesters will be charged 
search and duplication costs prescribed by Rule 4.8 for requests under 
this section. All requests shall include a statement of the information 
needed to determine fees, as provided by Sec.  4.8(c), and an agreement 
to pay fees (or a statement that the requester will not pay fees if a 
fee waiver is denied), as provided by Sec.  4.8(d). Requests may also 
include an application for a fee waiver, as provided by Sec.  4.8(e). 
Advance payment may be required, as provided by Sec.  4.8(h).
    (iii) Records for sale at another government agency. If requested 
materials are available for sale at a another government agency, the 
requester will not be provided with copies of the materials but will be 
advised to obtain them from the selling agency.
    (b) Categories. Except to the extent material is confidential, as 
provided in paragraph (c) of this section, the public record of the 
Commission includes, but is not necessarily limited to:
    (1) Commission Organization and Procedures (16 CFR part 0 and 
Sec. Sec.  4.14 through 4.15, 4.17). (i) A current index of opinions, 
orders, statements of policy and interpretations, administrative staff 
manuals, general instructions and other public records of the 
Commission;
    (ii) A current record of the final votes of each member of the 
Commission in all matters of public record, including matters of public 
record decided by notational voting;
    (iii) Descriptions of the Commission's organization, including 
descriptions of where, from whom, and how the public may secure 
information, submit documents or requests, and obtain copies of orders, 
decisions and other materials;
    (iv) Statements of the Commission's general procedures and policies 
and interpretations, its nonadjudicative procedures, its rules of 
practice for adjudicative proceedings, and its miscellaneous rules, 
including descriptions of the nature and requirements of all formal and 
informal procedures available, and
    (v) Reprints of the principal laws under which the Commission 
exercises enforcement or administrative responsibilities.
    (2) Industry Guidance (16 CFR 1.1-1.6). (i) Any advice, advisory 
opinion or response given and required to be made public under 
Sec. Sec.  1.4 and 2.41 (d) or (f) of this chapter (whether by the 
Commission or the staff), together with a statement of supporting 
reasons;

[[Page 98]]

    (ii) Industry guides, digests of advisory opinions and compliance 
advice believed to be of interest to the public generally and other 
administrative interpretations;
    (iii) Transcripts of hearings in all industry guide proceedings, as 
well as written statements filed with or forwarded to the Commission in 
connection with these proceedings; and
    (iv) Petitions filed with the Secretary of the Commission for the 
promulgation or issuance, amendment, or repeal of industry guides.
    (3) Rulemaking (16 CFR 1.7 through 1.26). (i) Petitions filed with 
the Secretary of the Commission for the promulgation or issuance, 
amendment, or repeal of rules or regulations within the scope of 
Sec. Sec.  1.7 and 1.21 of this chapter, and petitions for exemptions;
    (ii) Notices and advance notices of proposed rulemaking and rules 
and orders issued in rulemaking proceedings; and
    (iii) Transcripts of hearings of all rulemaking proceedings, as well 
as written statements filed with or forwarded to the Commission in 
connection with these proceedings.
    (4) Investigations (16 CFR 2.7). (i) Petitions to limit or quash 
compulsory process and the rulings thereon, requests for review by the 
full Commission of those rulings, and Commission rulings on such 
requests; and
    (ii) Closing letters in initial phase and full phase investigations.
    (5) Adjudicative proceedings, stay applications, requests to reopen, 
and litigated orders. (16 CFR 2.51, 3.1 through 3.24, 3.31 through 3.56, 
3.71 through 3.72, 4.7)--Except for transcripts of matters heard in 
camera pursuant to Sec.  3.45 and material filed in camera pursuant to 
Sec. Sec.  3.22, 3.24, 3.45, 3.46, 3.51 and 3.52,
    (i) The versions of pleadings and transcripts of prehearing 
conferences to the extent made available under Sec.  3.21(e), motions, 
certifications, orders, and the transcripts of hearings (including 
public conferences), testimony, oral arguments, and other material made 
a part thereof, and exhibits and material received in evidence or made a 
part of the public record in adjudicative proceedings;
    (ii) Initial decisions of administrative law judges;
    (iii) Orders and opinions in interlocutory matters;
    (iv) Final orders and opinions in adjudications, and rulings on stay 
applications, including separate statements of Commissioners;
    (v) Petitions for reconsideration, and answers thereto, filed 
pursuant to Sec.  3.55;
    (vi) Applications for stay, answers thereto, and replies, filed 
pursuant to Sec.  3.56;
    (vii) Petitions, applications, pleadings, briefs, and other records 
filed by the Commission with the courts in connection with adjudicative, 
injunctive, enforcement, compliance, and condemnation proceedings, and 
in connection with judicial review of Commission actions, and opinions 
and orders of the courts in disposition thereof;
    (viii) Records of ex parte communications in adjudicative 
proceedings and stay applications;
    (ix) Petitions to reopen proceedings and orders to determine whether 
orders should be altered, modified, or set aside in accordance with 
Sec.  2.51; and
    (x) Decisions reopening proceedings, and orders to show cause under 
Sec.  3.72.
    (6) Consent Agreements (16 CFR 2.31 through 2.34, 3.25). (i) 
Agreements containing orders, after acceptance by the Commission 
pursuant to Sec. Sec.  2.34 and 3.25(f) of this chapter;
    (ii) Comments and other materials filed or placed on the public 
record under Sec. Sec.  2.34 and 3.25(f) concerning proposed consent 
agreements and related orders; and
    (iii) Decisions and orders issued and served under Sec. Sec.  2.34 
and 3.25(f), including separate statements of Commissioners.
    (7) Compliance/Enforcement (16 CFR 2.33, 2.41). (i) Reports of 
compliance filed pursuant to the rules in this chapter or pursuant to a 
provision in a Commission order and supplemental materials filed in 
connection with these reports, except for reports of compliance, and 
supplemental materials filed in connection with Commission orders 
requiring divestitures or establishment of business enterprises of 
facilities, which are confidential until the last divestiture or 
establishment of a business enterprise or facility, as required by a 
particular order, has been

[[Page 99]]

finally approved by the Commission, and staff letters to respondents 
advising them that their compliance reports do not warrant any further 
action. At the time each such report is submitted the filing party may 
request confidential treatment in accordance with paragraph (c) of this 
section and the General Counsel or the General Counsel's designee will 
pass upon such request in accordance with that paragraph;
    (ii) Materials required to be made public under 16 CFR 2.41(f) in 
connection with applications for approval of proposed divestitures, 
acquisitions or similar transactions subject to Commission review under 
outstanding orders.
    (8) Access to Documents and Meetings (16 CFR 4.8, 4.11, 4.13, 4.15). 
(i) Letters requesting access to Commission records pursuant to Sec.  
4.11(a) of this chapter and the Freedom of Information Act, 5 U.S.C. 
552, and letters granting or denying such requests (not including access 
requests and answers thereto from the Congress or other government 
agencies);
    (ii) Announcements of Commission meetings as required under the 
Sunshine Act, 5 U.S.C. 552b, including records of the votes to close 
such meetings;
    (iii) Summaries or other explanatory materials relating to matters 
to be considered at open meetings made available pursuant to Sec.  
4.15(b)(3)
    (iv) Commission minutes of open meetings, and, to the extent they 
are not exempt from mandatory public disclosure under the Sunshine Act 
or the Freedom of Information Act, portions of minutes or transcripts of 
closed meetings; and
    (v) A guide for requesting records or information from the 
Commission, including an index of all major information systems, a 
description of major information and record locator systems maintained 
by the Commission, and a handbook for obtaining various types and 
categories of public information.
    (9) Standards of Conduct (16 CFR 5.5 through 5.6, 5.10 through 5.26, 
5.31, 5.57 through 5.68). (i) Memoranda to staff elaborating or 
clarifying standards described in administative staff manuals and part 5 
of this subchapter.
    (10) Miscellaneous (Press Releases, Clearance Requests, Reports 
Filed by or with the Commission, Continuing Guaranties, Registered 
Identification Numbers). (i) Releases by the Commission's Office of 
Public Affairs supplying information concerning the activities of the 
Commission;
    (ii) Applications under Sec.  4.1(b)(2) of this chapter for 
clearance or authorization to appear or participate in a proceeding or 
investigation and of the Commission's responses thereto;
    (iii) Continuing guaranties filed under the Wool, Fur, and Textile 
Acts;
    (iv) Published reports by the staff or by the Commission on economic 
surveys and investigations of general interest;
    (v) Filings by the Commission or by the staff in connection with 
proceedings before other federal agencies or state or local government 
bodies;
    (vi) Registration statements and annual reports filed with the 
Commission by export trade associations, and bulletins, pamphlets, and 
reports with respect to such associations released by the Commission;
    (vii) The identities of holders of registered identification numbers 
issued by the Commission pursuant to Sec.  1.32 of this chapter;
    (viii) The Commission's annual report submitted after the end of 
each fiscal year, summarizing its work during the year (available for 
inspection at each of the offices of the Commission with copies 
obtainable from the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402) and any other annual reports made 
to Congress on activities of the Commission as required by law;
    (ix) Records, as determined by the General Counsel or his or her 
designee, that have been released in response to a request made under 
the Freedom of Information Act, 5 U.S.C. 552, and which, because of the 
nature of the subject matter, have become or are likely to become the 
subject of subsequent requests for substantially the same records, 
except where some or all of those records would be exempt from 
disclosure under 5 U.S.C. 552 if requested by another party;

[[Page 100]]

    (x) A general index of the records referred to under paragraph 
(b)(10)(ix) of this section;
    (xi) Grants of early termination of waiting periods published in 
accordance with the Hart-Scott-Rodino premerger notification provisions 
of the Clayton Act, 15 U.S.C. 18a(b)(2);
    (xii) Reports on appliance energy consumption or efficiency filed 
with the Commission pursuant to Sec.  305.8 of this chapter;
    (xiii) Annual filings by professional boxing sanctioning 
organizations as required by the Muhammed Ali Boxing Reform Act, 15 
U.S.C. 6301 note, 6307a-6307h;
    (xiv) Other documents that the Commission has determined to place on 
the public record; and
    (xv) Every amendment, revision, substitute, or repeal of any of the 
foregoing items listed in Sec.  4.9(b)(1) through (10) of this section.
    (c) Confidentiality and in camera material. (1) Persons submitting 
material to the Commission described in this section may designate that 
material or portions of it confidential and request that it be withheld 
from the public record. All requests for confidential treatment shall be 
supported by a showing of justification in light of applicable statutes, 
rules, orders of the Commission or its administrative law judges, orders 
of the courts, or other relevant authority. The General Counsel or the 
General Counsel's designee will act upon such request with due regard 
for legal constraints and the public interest. No such material or 
portions of material (including documents generated by the Commission or 
its staff containing or reflecting such material or portions of 
material) will be placed on the public record until the General Counsel 
or the General Counsel's designee has ruled on the request for 
confidential treatment and provided any prior notice to the submitter 
required by law.
    (2) Motions seeking in camera treatment of material submitted in 
connection with a proceeding under part 3 of these rules, except stay 
applications under Sec.  3.56, shall be filed with the Administrative 
Law Judge who is presiding over the proceeding. Requests for 
confidential treatment of material submitted in connection with a stay 
application shall be made in accordance with Sec.  4.9(c)(1).
    (3) To the extent that any material or portions of material 
otherwise falling within paragraph (b) of this section contain 
information that is not required to be made public under Sec.  4.10 of 
this part, the General Counsel or the General Counsel's designee may 
determine, with due regard for legal constraints and the public 
interest, to withhold such materials from the public record.

[50 FR 50779, Dec. 12, 1985, as amended at 57 FR 10805, Mar. 31, 1992; 
59 FR 34970, July 8, 1994; 60 FR 37749, July 21, 1995; 63 FR 18820, Apr. 
16, 1998; 63 FR 32977, June 17, 1998; 63 FR 45647, Aug. 26, 1998; 64 FR 
46269, Aug. 25, 1999; 66 FR 17633, Apr. 3, 2001; 66 FR 64144, Dec. 12, 
2001]



Sec.  4.10  Nonpublic material.

    (a) The following records and other material of the Commission are 
not required to be made public pursuant to 5 U.S.C. 552.
    (1) Records, except to the extent required to be disclosed under 
other laws or regulations, related solely to the internal personnel 
rules and practices of the Commission. This exemption applies to 
internal rules or instructions to Commission personnel which must be 
kept confidential in order to assure effective performance of the 
functions and activities for which the Commission is responsible and 
which do not affect members of the public.
    (2) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential. As provided in section 
6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), this 
exemption applies to competitively sensitive information, such as costs 
or various types of sales statistics and inventories. It includes trade 
secrets in the nature of formulas, patterns, devices, and processes of 
manufacture, as well as names of customers in which there is a 
proprietary or highly competitive interest.
    (3) Interagency or intra-agency memoranda or letters which would not 
routinely be available by law to a private party in litigation with the 
Commission. This exemption preserves the

[[Page 101]]

existing freedom of Commission officials and employees to engage in full 
and frank communication with each other and with officials and employees 
of other governmental agencies. This exemption includes records of the 
deliberations of the Commission except for the record of the final votes 
of each member of the Commission in every agency proceeding. It includes 
intra agency and interagency reports, memorandums, letters, 
correspondence, work papers, and minutes of meetings, as well as staff 
papers prepared for use within the Commission or between the Commission 
and other governmental agencies. It also includes information scheduled 
for public release, but as to which premature release would be contrary 
to the public interest;
    (4) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy except to the extent such files or materials must be disclosed 
under other laws or regulations. This exemption applies to personnel and 
medical records and similar records containing private or personal 
information concerning any individual which, if disclosed to any person 
other than the individual concerned or his designated legal 
representative without his permission in writing, would constitute a 
clearly unwarranted invasion of personal privacy. Examples of files 
exempt from disclosure include, but are not limited to:
    (i) The personnel records of the Commission;
    (ii) Files containing reports, records or other material pertaining 
to individual cases in which disciplinary or other administrative action 
has been or may be taken, including records of proceedings pertaining to 
the conduct or performance of duties by Commission personnel;
    (5) Records or information compiled for law enforcement purposes, 
but only to the extent that production of such law enforcement records 
or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution that furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (6) Information contained in or related to examination, operating, 
or condition reports prepared by, on behalf of, or for the use of an 
agency responsible for the regulation or supervision of financial 
institutions;
    (7) Geological and geophysical information and data, including maps, 
concerning wells; and
    (8) Material, as that term is defined in section 21(a) of the 
Federal Trade Commission Act, which is received by the Commission:
    (i) In an investigation, a purpose of which is to determine whether 
any person may have violated any provision of the laws administered by 
the Commission; and
    (ii) Which is provided pursuant to any compulsory process under the 
Federal Trade Commission Act, 15 U.S.C. 41, et seq., or which is 
provided voluntarily in place of compulsory process in such an 
investigation. See section 21(f) of the Federal Trade Commission Act.
    (9) Material, as that term is defined in section 21(a) of the 
Federal Trade Commission Act, which is received by the Commission 
pursuant to compulsory process in an investigation, a purpose of which 
is to determine whether

[[Page 102]]

any person may have violated any provision of the laws administered by 
the Commission. See section 21(b)(3)(C) of the Federal Trade Commission 
Act.
    (10) Such other material of the Commission as may from time to time 
be designated by the Commission as confidential pursuant to statute or 
Executive Order. This exempts from disclosure any information that has 
been designated nonpublic pursuant to criteria and procedures prescribed 
by Executive Order and that has not been subsequently declassified in 
accordance with applicable procedures. The exemption also preserves the 
full force and effect of statutes that restrict public access to 
specific government records or material.
    (11) Material in an investigation or proceeding that involves a 
possible violation of criminal law, when there is reason to believe that 
the subject of the investigation or proceeding is not aware of its 
pendency, and disclosure of the existence of the investigation could 
reasonably be expected to interfere with enforcement proceedings. When a 
request is made for records under Sec.  4.11(a), the Commission may 
treat the records as not subject to the requirements of the Freedom of 
Information Act.
    (b) With respect to information contained in transcripts of 
Commission meetings, the exemptions contained in paragraph (a) of this 
section, except for paragraphs (a)(3) and (a)(7) of this section, shall 
apply; in addition, such information will not be made available if it is 
likely to have any of the effects described in 5 U.S.C. 552b (c)(5), 
(c)(9), or (c)(10).
    (c) Under section 10 of the Federal Trade Commission Act, any 
officer or employee of the Commission who shall make public any 
information obtained by the Commission, without its authority, unless 
directed by a court, shall be deemed guilty of a misdemeanor, and upon 
conviction thereof, may be punished by a fine not exceeding five 
thousand dollars ($5,000), or by imprisonment not exceeding 1 year, or 
by fine and imprisonment, in the discretion of the court.
    (d) Except as provided in paragraphs (f) or (g) of this section or 
in Sec.  4.11 (b), (c), (d), or (i), no material that is marked or 
otherwise identified as confidential and that is within the scope of 
Sec.  4.10(a)(8), and no material within the scope of Sec.  4.10(a)(9) 
that is not otherwise public, will be made available, without the 
consent of the person who produced the material, to any individual other 
than a duly authorized officer or employee of the Commission or a 
consultant or contractor retained by the Commission who has agreed in 
writing not to disclose the information. All other Commission records 
may be made available to a requester under the procedures set forth in 
Sec.  4.11 or may be disclosed by the Commission except where prohibited 
by law.
    (e) Except as provided in paragraphs (f) or (g) of this section or 
in Sec.  4.11 (b), (c), (d), or (i), material not within the scope of 
Sec.  4.10(a)(8) or Sec.  4.10(a)(9) that is received by the Commission 
and is marked or otherwise identified as confidential may be disclosed 
only if it is determined that the material is not within the scope of 
Sec.  4.10(a)(2), and the submitter is provided at least ten days' 
notice of the intent to disclose the material.
    (f) Nonpublic material obtained by the Commission may be disclosed 
to persons other than the submitter in connection with the taking of 
oral testimony without the consent of the submitter only if the material 
or transcript is not within the scope of Sec.  4.10(a)(2). If the 
material is marked confidential, the submitter will be provided 10 days' 
notice of the intended disclosure or will be afforded an opportunity to 
seek an appropriate protective order.
    (g) Material obtained by the Commission:
    (1) Through compulsory process and protected by section 21(b) of the 
Federal Trade Commission Act, 15 U.S.C. 57b-2(b) or voluntarily in lieu 
thereof and designated by the submitter as confidential and protected by 
section 21(f) of the Federal Trade Commission Act, 15 U.S.C. 57b-2(f), 
and Sec.  4.10(d) of this part; or
    (2) That is designated by the submitter as confidential, and 
protected by section 21(c) of the Federal Trade Commission Act, 15 
U.S.C. 57b-2(c), and Sec.  4.10(e) of this part; or

[[Page 103]]

    (3) That is confidential commercial or financial information 
protected by section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 
46(f), and Sec.  4.10(a)(2) of this part, may be disclosed in Commission 
administrative or court proceedings subject to Commission or court 
protective or in camera orders as appropriate. See Sec. Sec.  1.18(b) 
and 3.45.

Prior to disclosure of such material in a proceeding, the submitter will 
be afforded an opportunity to seek an appropriate protective or in 
camera order. All other material obtained by the Commission may be 
disclosed in Commission administrative or court proceedings at the 
discretion of the Commission except where prohibited by law.

(15 U.S.C. 41 et seq.)

[38 FR 1731, Jan. 18, 1973, as amended at 40 FR 7629, Feb. 21, 1975; 40 
FR 23278, May 29, 1975; 42 FR 13540, Mar. 11, 1977; 46 FR 26291, May 12, 
1981; 49 FR 30166, July 27, 1984; 54 FR 7399, Feb. 21, 1989; 57 FR 
10807, Mar. 31, 1992; 60 FR 37749, July 21, 1995; 63 FR 38473, July 17, 
1998; 65 FR 67259, Nov. 9, 2000; 66 FR 17633, Apr. 3, 2001]



Sec.  4.11  Disclosure requests.

    (a) Freedom of Information Act requests--(1) Initial requests--(i) 
Form and contents; time of receipt. (A) A request under the provisions 
of the Freedom of Information Act, 5 U.S.C. 552, as amended, for access 
to Commission records shall be in writing and addressed as follows: 
Freedom of Information Act Request, Office of the General Counsel, 
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 
20580.
    (B) Failure to mark the envelope and the request in accordance with 
paragraph (a)(1)(i)(A) of this section, or the filing of a request for 
expedited treatment under paragraph (a)(1)(i)(E) of this section, will 
result in the request (or requests, if expedited treatment has been 
requested) being treated as received on the date that the processing 
unit in the Office of General Counsel actually receives the request(s).
    (C) Costs; agreement to pay costs. Requesters will be charged search 
and duplication costs prescribed by Rule 4.8 for requests under this 
section. All requests shall include a statement of the information 
needed to determine fees, as provided by Sec.  4.8(c), and an agreement 
to pay fees (or a statement that the requester will not pay fees if a 
fee waiver is denied), as provided by Sec.  4.8(d). Requests may also 
include an application for a fee waiver, as provided by Sec.  4.8(e). An 
advance payment may be required in appropriate cases as provided by 
Sec.  4.8(h).
    (D) Failure to agree to pay fees. If a request does not include an 
agreement to pay fees, and if the requester is notified of the estimated 
costs pursuant to Rule 4.8(d)(3), the request will be deemed not to have 
been received until the requester agrees to pay such fees. If a 
requester declines to pay fees and is not granted a fee waiver, the 
request will be denied.
    (E) Expedited treatment. Requests may include an application for 
expedited treatment. Where such an application is not included with an 
initial request for access to records under paragraph (a)(1) of this 
section, the application may be included in any appeal of that request 
filed under paragraph (a)(2) of this section. Such application, which 
shall be certified by the requester to be true and correct to the best 
of such person's knowledge and belief, shall describe the compelling 
need for expedited treatment, including an explanation as to why a 
failure to obtain the requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual, or, with respect to a request made by 
a person primarily engaged in disseminating information, an explanation 
of the urgency to inform the public concerning actual or alleged Federal 
Government activity. The deciding official (as designated by the General 
Counsel) will, within 10 calendar days of receipt of a request for 
expedited treatment, notify the requester, in writing, of the decision 
to either grant or deny the request for expedited treatment, and, if the 
request is denied, advise the requester that this determination may be 
appealed to the General Counsel.
    (F) Records for sale at another government agency. If requested 
materials are available for sale at another government agency, the 
requester will not be provided with copies of the materials

[[Page 104]]

but will be advised to obtain them from the selling agency.
    (ii) Identifiability. (A) A request for access to Commission records 
must reasonably describe the records requested to enable Commission 
personnel to identify and locate them with a reasonable amount of 
effort. A request should be as specific as possible, and include, where 
known, information regarding dates, titles, file designations, location, 
and any other information which may assist the Commission in identifying 
and locating the records requested.
    (B) A denial of a request may state that the description required by 
paragraph (a)(1)(ii)(A) of this section is insufficient to allow 
identification and location of the records.
    (iii) Time limit for initial determination. (A) The deciding 
official (as designated by the General Counsel) will, within 20 working 
days of the receipt of a request, either grant or deny, in whole or in 
part, such request, unless the request has been granted expedited 
treatment in accordance with this section, in which case the request 
will be processed as soon as practicable.
    (B) Except in exceptional circumstances as provided in paragraph 
(a)(1)(iii)(C) of this section, the deciding official (as designated by 
the General Counsel) may extend the time limit by not more than 10 
working days if such extension is:
    (1) Necessary for locating records or transferring them from 
physically separate facilities; or
    (2) Necessary to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are sought in a 
single or series of closely related requests; or
    (3) Necessary for consultation with another agency having a 
substantial interest in the determination, or for consultation among two 
or more components of the Commission having substantial subject matter 
interest therein.
    (C) If the deciding official (as designated by the General Counsel) 
extends the time limit for initial determination pursuant to paragraph 
(a)(1)(iii)(B) of this section, the requester will be notified in 
accordance with 5 U.S.C. 552(a)(6)(B). In exceptional circumstances, 
when the request cannot be processed within the extended time limit, the 
requester will be so notified and provided an opportunity to limit the 
scope of the request so that it may be processed within such time limit, 
or to arrange an alternative time frame for processing the request or a 
modified request. ``Exceptional'' circumstances will not include delays 
resulting from a predictable workload of requests under this section. 
Unwillingness to make reasonable modifications in the scope of the 
request or to agree to an alternative time frame may be considered as 
factors in determining whether exceptional circumstances exist and 
whether the agency has exercised due diligence in responding to the 
request.
    (D) If the deciding official (as designated by the General Counsel) 
reasonably believes that requests made by a requester, or a group of 
requesters acting in concert, actually constitute a single request that 
would otherwise involve unusual circumstances, as specified in paragraph 
(a)(1)(iii)(B) of this section, and the requests involve clearly related 
matters, those multiple requests may be aggregated.
    (E) If a request is not granted within the time limits set forth in 
paragraphs (a)(1)(iii) (A) and (B) of this section, the request shall be 
deemed to be denied and the requesting party may appeal such denial to 
the General Counsel in accordance with paragraph (a)(2) of this section.
    (iv) Initial determination. (A) The deciding official (as designated 
by the General Counsel) will make reasonable efforts to search, using 
either manual or electronic means, for the requested records in 
electronic form or format, except when such efforts would significantly 
interfere with the operation of the Commission's automated information 
systems. Access will be granted to requested records, or any portions 
thereof, that must be made available under the Freedom of Information 
Act. Access will be denied to records that are exempt under the Freedom 
of Information Act, 5 U.S.C. 552(b), unless the deciding official (as 
designated by the General Counsel) determines that such records fall 
within a category the Commission or the General Counsel has

[[Page 105]]

previously authorized to be made available to the public as a matter of 
policy. Denials will set forth the reasons therefor and advise the 
requester that this determination may be appealed to the General Counsel 
if the requester believes either that the records are not exempt, or 
that the General Counsel should exercise discretion to release such 
records notwithstanding their exempt status. The deciding official (as 
designated by the General Counsel) will also provide a reasonable, good-
faith estimate of the volume of any materials to which access is denied, 
unless providing such an estimate would harm an interest protected by an 
exemption in 5 U.S.C. 552(b) that was cited as a basis for withholding 
materials.
    (B) The deciding official (as designated by the General Counsel) is 
deemed to be the sole official responsible for all denials of initial 
requests, except denials of access to materials contained in active 
investigatory files, in which case the Director or Deputy Director of 
the Bureau or the Director of the Regional Office responsible for the 
investigation will be the responsible official.
    (C) Records to which access has been granted will be made available 
to the requester in any form or format specified by the requester, if 
the records are readily reproducible in that form or format, or can be 
converted to that form or format with a reasonable amount of effort, and 
they will remain available for inspection and copying for a period not 
to exceed 30 days from date of notification to the requester unless the 
requester asks for and receives the consent of the deciding official (as 
designated by the General Counsel) to a longer period. Records assembled 
pursuant to a request will remain available only during this period and 
thereafter will be refiled. Appropriate fees may be imposed for any new 
or renewed request for the same records.
    (D) If a requested record cannot be located from the information 
supplied, or is known to have been destroyed or otherwise disposed of, 
the requester shall be so notified.
    (2) Appeals to the General Counsel from initial denials--(i) Form 
and contents; time of receipt. (A)(1) If an initial request for 
expedited treatment is denied, the requester, at any time before the 
initial determination of the underlying request for records by the 
deciding official (as designated by the General Counsel) (or, if the 
request for expedited treatment was filed with any appeal filed under 
paragraph (a)(2)(i)(A)(2) of this section, at any time before the 
General Counsel's determination on such an appeal), may appeal the 
denial of expedited treatment to the General Counsel.
    (2) If an initial request for records is denied in its entirety, the 
requester may, within 30 days of the date of the determination, appeal 
such denial to the General Counsel. If an initial request is denied in 
part, the time for appeal will not expire until 30 days after the date 
of the letter notifying the requester that all records to which access 
has been granted have been made available.
    (3) The appeal shall be in writing and should include a copy of the 
initial request and a copy of the response to that initial request, if 
any. The appeal shall be addressed as follows: Freedom of Information 
Act Appeal, Office of the General Counsel, Federal Trade Commission, 600 
Pennsylvania Avenue, NW., Washington, DC 20580.
    (B) Failure to mark the envelope and the appeal in accordance with 
paragraph (a)(2)(i)(A) of this section will result in the appeal (and 
any request for expedited treatment filed with that appeal) being 
treated as received on the actual date of receipt by the Office of 
General Counsel.
    (C) Each appeal to the General Counsel which requests him to 
exercise his discretion to release exempt records shall set forth the 
interest of the requester in the subject matter and the purpose for 
which the records will be used if the request is granted.
    (ii) Time limit for appeal. (A)(1) Regarding appeals from initial 
denials of a request for expedited treatment, the General Counsel will 
either grant or deny the appeal expeditiously;
    (2) Regarding appeals from initial denials of a request for records, 
the General Counsel will, within 20 working days of the receipt of such 
an appeal, either grant or deny it, in whole or in part, unless 
expedited treatment has

[[Page 106]]

been granted in accordance with this section, in which case the appeal 
will be processed as soon as practicable.
    (B) The General Counsel may, by written notice to the requester in 
accordance with 5 U.S.C. 552(a)(6)(B), extend the time limit for 
deciding an appeal by not more than 10 working days pursuant to 
paragraph (a)(1)(iii)(B) of this section, provided that the amount of 
any extension utilized during the initial consideration of the request 
under that paragraph will be subtracted from the amount of additional 
time otherwise available. Where exceptional circumstances do not permit 
the processing of the appeal within the extended time limit, the notice 
and procedures set forth in paragraph (a)(1)(iii)(C) of this section 
shall apply.
    (iii) Determination of appeal. (A) The General Counsel has the 
authority to grant or deny all appeals and to release as an exercise of 
discretion records exempt from mandatory disclosure under 5 U.S.C. 
552(b). In unusual or difficult cases, the General Counsel may, in his 
or her sole discretion, refer an appeal to the Commission for 
determination. A denial of an appeal in whole or in part will set forth 
the basis for the denial; will include a reasonable, good-faith estimate 
of the volume of any materials to which access is denied, unless 
providing such an estimate would harm an interest protected by an 
exemption in 5 U.S.C. 552(b) that was cited as a basis for withholding 
materials; and will advise the requester that judicial review of the 
decision is available by civil suit in the district in which the 
requester resides, or has his principal place of business, or in which 
the agency records are situated, or in the District of Columbia.
    (B) The General Counsel shall be deemed solely responsible for all 
denials of appeals, except where an appeal is denied by the Commission. 
In such instances, the Commission shall be deemed solely responsible for 
the denial.
    (b) Requests from congressional committees and subcommittees. 
Requests from congressional committees and subcommittees for nonpublic 
material shall be referred to the General Counsel for presentation to 
the Commission, subject to the provisions in 5 U.S.C. 552(c) and FTC Act 
21(b) that neither the Freedom of Information Act, 5 U.S.C. 552, nor the 
Federal Trade Commission Act, 15 U.S.C. 41, et seq., is authority to 
withhold information from Congress. Upon receipt of a request from a 
congressional committee or subcommittee, notice will be given to the 
submitter of any material marked confidential, or any material within 
the scope of Sec.  4.10(a)(9), that is responsive to the request that 
the request has been received. No other notice need be provided prior to 
granting the request. The Commission will inform the committee or 
subcommittee that the submitter considers such information confidential.
    (c) Requests from Federal and State law enforcement agencies. 
Requests from law enforcement agencies of the Federal and State 
governments for nonpublic records shall be addressed to a liaison 
officer, where the Commission has appointed such an officer, or if there 
is none, to the General Counsel. With respect to requests under this 
paragraph, the General Counsel, the General Counsel's designee, or the 
appropriate liaison officer is delegated the authority to dispose of 
them. Alternatively, the General Counsel may refer such requests to the 
Commission for determination, except that requests must be referred to 
the Commission for determination where the Bureau having the material 
sought and the General Counsel do not agree on the disposition. Prior to 
granting access under this section to any material submitted to the 
Commission, the General Counsel, the General Counsel's designee, or the 
liaison officer will obtain from the requester a certification that such 
information will be maintained in confidence and will be used only for 
official law enforcement purposes. The certificate will also describe 
the nature of the law enforcement activity and the anticipated relevance 
of the information to that activity. A copy of the certificate will be 
forwarded to the submitter of the information at the time the request is 
granted unless the agency requests that the submitter not be notified. 
Requests for material pursuant to compulsory process, or for voluntary 
testimony, in cases or matters in which the Commission is not a

[[Page 107]]

party will be treated in accordance with paragraph (e) of this section.
    (d) Requests from Federal and State agencies for purposes other than 
law enforcement. Requests from Federal and State agencies for access to 
nonpublic records for purposes not related to law enforcement should be 
addressed to the General Counsel. The General Counsel or the General 
Counsel's designee is delegated the authority to dispose of requests 
under this paragraph. Disclosure of nonpublic information will be made 
consistent with sections 6(f) and 21 of the FTC Act. Requests under this 
section shall be subject to the fee and fee waiver provisions of Sec.  
4.8. Requests for material pursuant to compulsory process, or for 
voluntary testimony, in cases or matters in which the Commission is not 
a party will be treated in accordance with paragraph (e) of this 
section.
    (e) Requests for testimony, pursuant to compulsory process or 
otherwise, and requests for material pursuant to compulsory process, in 
cases or matters to which the Commission is not a party. (1) The 
procedures specified in this section will apply to compulsory process 
and requests for voluntary testimony directed to Commission employees, 
except special government employees, that relate in any way to the 
employees' official duties. These procedures will also apply to 
compulsory process and requests for voluntary testimony directed to 
former Commission employees or to current or former special government 
employees of the Commission that seek nonpublic materials or information 
acquired during Commission employment. The provisions of paragraph 
(e)(3) of this section will also apply when requests described above are 
directed to the Commission. For purposes of this section, the term 
testimony includes any written or oral statement by a witness, such as 
depositions, affidavits, declarations, and statements at a hearing or 
trial; the term nonpublic includes any material or information which, 
under Sec.  4.10, is not required to be made public; the term employees, 
except where otherwise specified, includes special government employees 
and other Commission employees; and the term special government 
employees includes consultants and other employees as defined by section 
202 of title 18 of the United States Code.
    (2) Any employee or former employee who is served with compulsory 
process shall promptly advise the General Counsel of its service, the 
nature of the material or information sought, and all relevant facts and 
circumstances. This notification requirement also applies to any 
employee or former employee whose testimony is sought on a voluntary 
basis under the conditions set forth in paragraph (e)(1) of this 
section.
    (3) A party who causes compulsory process to be issued to, or who 
requests testimony by, the Commission or any employee or former employee 
of the Commission shall furnish a statement to the General Counsel, 
unless, with respect to a request by a Federal or State agency, the 
General Counsel determines, as a matter of discretion, to waive this 
requirement. The statement shall set forth the party's interest in the 
case or matter, the relevance of the desired testimony or material, and 
a discussion of whether it is reasonably available from other sources. 
If testimony is desired, the statement shall also contain a general 
summary of the testimony and a discussion of whether Commission records 
could be produced and used in its place. Any authorization for testimony 
will be limited to the scope of the demand as summarized in such 
statement.
    (4) Absent authorization from the General Counsel, the employee or 
former employee shall respectfully decline to produce requested material 
or to disclose requested information. The refusal should be based on 
this paragraph and on United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).
    (5) The General Counsel will consider and act upon compulsory 
process and requests for voluntary testimony under this section with due 
regard for statutory restrictions, the Commission's rules and the public 
interest, taking into account such factors as the need to conserve the 
time of employees for conducting official business; the need to avoid 
spending the time and money of the United States for private purposes; 
the need to maintain impartiality between private litigants in cases 
where a substantial government

[[Page 108]]

interest is not involved; and the established legal standards for 
determining whether justification exists for the disclosure of 
confidential information and material.
    (6) Invitations to testify before Congressional committees or 
subcommittees or to testify before other government bodies on the 
possible effects of legislative and regulatory proposals are not subject 
to paragraphs (e)(1) through (5) of this section.
    (f) Requests by current or former employees to use nonpublic 
memoranda as writing samples shall be addressed to the General Counsel. 
The General Counsel or the General Counsel's designee is delegated the 
authority to dispose of such requests consistent with applicable 
nondisclosure provisions, including sections 6(f) and 21 of the FTC Act.
    (g) Employees are encouraged to engage in teaching, lecturing, and 
writing that is not prohibited by law, Executive order, or regulation. 
However, an employee shall not use information obtained as a result of 
his Government employment, except to the extent that such information 
has been made available to the general public or will be made available 
on request, or when the General Counsel or the General Counsel's 
designee gives written authorization for the use of nonpublic 
information on the basis that the use is in the public interest.
    (h) The General Counsel (or General Counsel's designee) may 
authorize a Commission member, other Commission official, or Commission 
staff to disclose an item or category of information from Commission 
records not currently available to the public for routine inspection and 
copying under Rule 4.9(b) where the General Counsel (or General 
Counsel's designee) determines that such disclosure would facilitate the 
conduct of official agency business and would not otherwise be 
prohibited by applicable law, order, or regulation. Requests for such 
determinations shall be set forth in writing and, in the case of staff 
requests, shall be forwarded to the General Counsel (or General 
Counsel's designee) through the relevant Bureau. In unusual or difficult 
cases, the General Counsel may refer the request to the Commission for 
determination.
    (i) The Director of the Bureau of Competition is authorized, without 
power of redelegation, to respond to access requests for records and 
other materials pursuant to an agreement under the International 
Antitrust Enforcement Assistance Act, 15 U.S.C. 6201 et seq. Before 
responding to such a request, the Bureau Director shall transmit the 
proposed response to the Secretary and the Secretary shall notify the 
Commission of the proposed response. If no Commissioner objects within 
three days following the Commission's receipt of such notification, the 
Secretary shall inform the Bureau Director that he or she may proceed.

(15 U.S.C. 41 et seq.)

[40 FR 7629, Feb. 21, 1975, as amended at 42 FR 13820, Mar. 14, 1977; 43 
FR 5802, Feb. 10, 1978; 46 FR 26292, May 12, 1981; 48 FR 4280, Jan. 31, 
1983; 49 FR 20279, May 14, 1984; 49 FR 21048, May 18, 1984; 50 FR 53306, 
Dec. 31, 1985; 55 FR 29839, July 23, 1990; 57 FR 10807, Mar. 31, 1992; 
58 FR 15764, Mar. 24, 1993; 60 FR 37750, July 21, 1995; 63 FR 32978, 
June 17, 1998; 63 FR 45647, Aug. 26, 1998; 64 FR 3013, Jan. 20, 1999; 64 
FR 32180, June 16, 1999; 64 FR 35256, June 30, 1999; 65 FR 67259, Nov. 
9, 2000; 66 FR 64144, Dec. 12, 2001]



Sec.  4.12  Disposition of documents submitted to the Commission.

    (a) Material submitted to the Commission. (1) Any person who has 
submitted material to the Commission may obtain, on request, the return 
of material submitted to the Commission which has not been received into 
evidence:
    (i) After the close of the proceeding in connection with which the 
material was submitted; or
    (ii) When no proceeding in which the material may be used has been 
commenced within a reasonable time after completion of the examination 
and analysis of all such material and other information assembled in the 
course of the investigation.
    (2) Such request shall be in writing, addressed to the custodian 
designated pursuant to Sec.  2.16 or the Secretary of the Commission in 
all other circumstances, and shall reasonably describe the material 
requested. A request for return of material may be filed at any time, 
but material will not be returned nor will commitments to

[[Page 109]]

return material be undertaken prior to the time described in this 
paragraph.
    (b) Commission-made copies of documents submitted to the Commission. 
The Commission will not return to the submitter copies of documents made 
by the Commission unless, upon a showing of extraordinary circumstances, 
the Commission determines that return would be required in the public 
interest.
    (c) Disposition of material not returned. Subsequent to the time 
prescribed in paragraph (a) of this section, the staff will examine all 
submitted material and Commission-made copies of documents located in a 
reasonable search of the Commission's files and will determine, 
consistent with the Federal Records Act, 44 U.S.C. 3301, which materials 
are appropriate for preservation as evidence of the organization, 
functions, policies, decisions, procedures, operations, or other 
activities of the Commission or because of the information value of data 
in them. The Commission will dispose of all material determined not to 
be appropriate for preservation in accordance with applicable 
regulations of the National Archives and Records Administration.

[46 FR 26292, May 12, 1981, as amended at 60 FR 37751, July 21, 1995]



Sec.  4.13  Privacy Act rules.

    (a) Purpose and scope. (1) This section is promulgated to implement 
the Privacy Act of 1974 (Pub. L. 93-579, 5 U.S.C. 552a) by establishing 
procedures whereby an individual can, as to all systems of records 
maintained by the Commission except those set forth in Sec.  4.13(m) as 
exempt from disclosure, (i) Request notification of whether the 
Commission maintains a record pertaining to him in any system of rec 
ords, (ii) request access to such a rec ord or to an accounting of its 
disclosure, (iii) request that the record be amended or corrected, and 
(iv) appeal an initial adverse determination of any such request. This 
section also establishes those systems of records that are specifically 
exempt from disclosure and from other requirements.
    (2) The procedures of this section apply only to requests by an 
individual as defined in Sec.  4.13(b). Except as otherwise provided, 
they govern only rec ords containing personal information in systems of 
records for which notice has been published by the Commission in the 
Federal Register pursuant to section 552a(e)(4) of the Privacy Act of 
1974 and which are neither exempt from the provisions of this section 
nor contained in government-wide systems of personnel records for which 
notice has been published in the Federal Register by the Office of 
Personnel Management. Requests for notification, access, and amendment 
of personnel records which are contained in a system of records for 
which notice has been given by the Office of Personnel Management are 
governed by the Office of Personnel Management's notices, 5 CFR part 
297. Access to rec ords which are not subject to the requirements of the 
Privacy Act are governed by Sec. Sec.  4.8 through 4.11.
    (b) Definitions. The following definitions apply to this section 
only:
    (1) Individual means a natural person who is a citizen of the United 
States or an alien lawfully admitted for permanent residence.
    (2) Record means any item, collection, or grouping of personal 
information about an individual that is maintained by the Commission, 
including, but not limited to, his education, financial transactions, 
medical history, and criminal or employment history and that contains 
his name, or the identifying number, symbol, or other identifying 
particular assigned to the individual, such as a finger or voice print 
or a photograph, but does not include information concerning 
proprietorships, businesses, or corporations.
    (3) System of records means a group of any records under the control 
of the Commission from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual, for which notice has been 
published by the Commission in the Federal Register pursuant to 5 U.S.C. 
552a(e)(4).
    (c) Procedures for requests pertaining to individual records in a 
record system. An individual may request access to his or her records or 
any information pertaining to that individual in a system of records, 
and notification of whether

[[Page 110]]

and to whom the Commission has disclosed a record for which an 
accounting of disclosures is required to be kept and made available to 
the individual, using the procedures of this section. Requests for the 
disclosure of records under this section or to determine whether a 
system of records contains records pertaining to an individual or to 
obtain an accounting of disclosures, shall be in writing and if mailed, 
addressed as follows:

Privacy Act Request, Office of the General Counsel, Federal Trade 
Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.


If requests are presented in person at the Office of the General 
Counsel, the individual shall be required to execute a written request. 
All requests shall name the system of records that is the subject of the 
request, and shall include any additional information specified in the 
pertinent system notice as necessary to locate the records requested. If 
the requester wants another person to accompany him or her to review the 
records, the request shall so state. Nothing in this section will allow 
an individual access to any information compiled in reasonable 
anticipation of a civil action or proceeding.
    (d) Times, places, and requirements for identification of 
individuals making requests. Verification of identity of persons making 
written requests to the deciding official (as designated by the General 
Counsel) ordinarily will not be required. The signature on such requests 
will be deemed a certification by the signatory that he or she is the 
individual to whom the record pertains or is the parent or guardian of a 
minor or the legal guardian of the individual to whom the record 
pertains. The deciding official (as designated by the General Counsel) 
may require additional verification of a requester's identity when such 
information is reasonably necessary to assure that records are not 
improperly disclosed; provided, however, that no verification of 
identity will be required if the records sought are publicly available 
under the Freedom of Information Act.
    (e) Disclosure of requested information to individuals. Within 10 
working days of receipt of a request under Sec.  4.13(c), the deciding 
official (as designated by the General Counsel) will acknowledge receipt 
of the request. Within 30 working days of the receipt of a request under 
Sec.  4.13(c), the deciding official (as designated by the General 
Counsel) will inform the requester whether a system of records 
containing retrievable information pertaining to the requester exists, 
and if so, either that the request has been granted or that the 
requested records or information is exempt from disclosure pursuant to 
Sec.  4.13(m). When, for good cause shown, the deciding official (as 
designated by the General Counsel) is unable to respond within 30 
working days of the receipt of the request, that official will notify 
the requester and inform him or her approximately when a response will 
be made.
    (f) Special procedures: Medical records. When the deciding official 
(as designated by the General Counsel) determines that disclosure of a 
medical or psychological record directly to a requesting individual 
could have an adverse effect on the individual, he or she will require 
the individual to designate a medical doctor to whom the record will be 
transmitted.
    (g) Request for correction or amendment of record. An individual to 
whom access to his records or any information pertaining to him in a 
system of records has been granted may request that any portion thereof 
be amended or corrected because he believes it is not accurate, 
relevant, timely, or complete. An initial request for correction or 
amendment of a record shall be in writing whether presented in person or 
by mail, and if by mail, addressed as in Sec.  4.13(c). In making a 
request under this subsection, the requesting party shall state the 
nature of the information in the record the individual believes to be 
inaccurate, irrelevant, untimely, or incomplete, the correction or 
amendment desired, and the reasons therefore.
    (h) Agency review of request for correction or amendment of record. 
Whether presented in person or by mail, requests under Sec.  4.13(g) 
will be acknowledged by the deciding official (as designated by the 
General Counsel) within 10 working days of the receipt of the request if 
action on the request cannot

[[Page 111]]

be completed and the individual notified of the results within that 
time. Thereafter, the deciding official (as designated by the General 
Counsel) will promptly either make the requested amendment or correction 
or inform the requester of his refusal to make the amendment or 
correction, the reasons for the refusal, and the requester's right to 
appeal that refusal in accordance with Sec.  4.13(i).
    (i) Appeal of initial adverse agency determination. (1) If an 
initial request filed under Sec.  4.13(c) or Sec.  4.13(g) is denied, 
the requester may appeal that denial to the General Counsel. The appeal 
shall be in writing and addressed as follows:

Privacy Act Appeal, Office of the General Counsel, Federal Trade 
Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.


Within 30 working days of the receipt of the appeal, the General Counsel 
will notify the requester of the disposition of that appeal, except that 
the General Counsel may extend the 30-day period for good cause, in 
which case, the General Counsel will advise the requester of the 
approximate date on which review will be completed. In unusual or 
difficult cases, the General Counsel may, in his or her sole discretion, 
refer an appeal to the Commission for determination.
    (2)(i) If the General Counsel refuses to amend or correct the record 
in accordance with a request under Sec.  4.13(g), the General Counsel 
will notify the requester of that decision and inform the requester of 
the right to file with the deciding official (as designated by the 
General Counsel) a concise statement setting forth the reasons for the 
requester's disagreement with the General Counsel's determination and 
the fact that the requester's statement will be treated as set forth in 
paragraph (i)(2)(ii) of this section. The General Counsel will also 
inform the requester that judicial review of the decision is available 
by a civil suit in the district in which the requester resides, or has 
his principal place of business, or in which the agency records are 
situated, or in the District of Columbia.
    (ii) If the individual files a statement disagreeing with the 
General Counsel's determination not to amend or correct a record, such 
disagreement will be clearly noted in the record involved and the 
individual's statement will be made available to anyone to whom the 
record has been disclosed after September 27, 1975, or is subsequently 
disclosed together with, if the General Counsel deems it appropriate, a 
brief statement of his or her reasons for declining to amend the record.
    (j) Disclosure of record to person other than the individual to whom 
it pertains. Except as provided by 5 U.S.C. 552a(b), the written request 
or prior written consent of the individual to whom a record pertains, or 
of his parent if a minor, or legal guardian if incompetent, shall be 
required before such record is disclosed. If the individual elects to 
inspect a record in person and desires to be accompanied by another 
person, the deciding official (as designated by the General Counsel) may 
require the individual to furnish a signed statement authorizing 
disclosure of his or her record in the presence of the accompanying 
named person.
    (k) Fees. No fees will be charged for searching for a record, 
reviewing it, or for copies of records made by the Commission for its 
own purposes incident to granting access to a requester. Copies of 
records to which access has been granted under this section may be 
obtained by the requester from the deciding official (as designated by 
the General Counsel) on payment of the reproduction fees provided in 
Sec.  4.8(b)(6).
    (l) Penalties. Section 552a(i)(3) of the Privacy Act, 5 U.S.C. 
552a(i)(3), makes it a misdemeanor, subject to a maximum fine of $5,000, 
to knowingly and willfully request or obtain any record concerning an 
individual under false pretenses. Sections 552a(i) (1) and (2) of the 
Privacy Act, 5 U.S.C. 552a(i) (1) and (2), provide penalties for 
violations by agency employees of the Privacy Act or regulations 
established thereunder. Title 18 U.S.C. 1001, Crimes and Criminal 
Procedures, makes it a criminal offense, subject to a maximum fine of 
$10,000 or imprisonment for not more than 5 years or both, to knowingly 
and willfully make or cause to be made any false or fraudulent 
statements or representations in any matter within the

[[Page 112]]

jurisdiction of any agency of the United States.
    (m) Specific exemptions. (1) Pursuant to 5 U.S.C. 552a(j)(2), 
investigatory materials maintained by an agency component in connection 
with any activity relating to criminal law enforcement in the following 
systems of records are exempt from all subsections of 5 U.S.C. 552a, 
except (b), (c) (1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), 
(10), and (11), and (i), and from the provisions of this section, except 
as otherwise provided in 5 U.S.C. 552a(j)(2):

Office of Inspector General Investigative Files--FTC

    (2) Pursuant to 5 U.S.C. 552a(k)(2), investigatory materials 
compiled for law enforcement purposes in the following systems of 
records are exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), 
and (I), and (f) of 5 U.S.C. 552a, and from the provisions of this 
section, except as otherwise provided in 5 U.S.C. 552a(k)(2):

Investigational, Legal, and Public Records--FTC
Disciplinary Action Investigatory Files--FTC
Clearance to Participate Applications and the Commission's Responses 
Thereto, and Related Documents--FTC
Management Information System--FTC
Office of the Secretary Control and Reporting System--FTC
Office of Inspector General Investigative Files--FTC
Stenographic Reporting Service Requests--FTC
Identity Theft Complaint Management System--FTC
Freedom of Information Act Requests and Appeals--FTC
Privacy Act Requests and Appeals--FTC
Information Retrieval and Indexing System--FTC

    (3) Pursuant to 5 U.S.C. 552a(k)(5), investigatory materials 
compiled to determine suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information, but only where disclosure would reveal 
the identity of a confidential source of information, in the following 
systems of records are exempt from subsections (c)(3), (d), (e)(1), 
(e)(4) (G), (H), and (I), and (f) of 5 U.S.C. 552a, and from the 
provisions of this section, except as otherwise provided in 5 U.S.C. 
552a(k)(5):

Personnel Security File--FTC

[40 FR 40780, Sept. 3, 1975, as amended at 46 FR 26292, May 12, 1981; 48 
FR 4280, Jan. 31, 1983; 55 FR 37700, Sept. 13, 1990; 55 FR 38801, Sept. 
21, 1990; 57 FR 10808, Mar. 31, 1992; 58 FR 7047, Feb. 4, 1993; 63 FR 
45648, Aug. 26, 1998; 64 FR 3014, Jan. 20, 1999; 64 FR 69397, Dec. 13, 
1999; 66 FR 64144, Dec. 12, 2001; 67 FR 123, Jan. 2, 2002]



Sec.  4.14  Conduct of business.

    (a) Matters before the Commission for consideration may be resolved 
either at a meeting under Sec.  4.15 or by written circulation. Any 
Commissioner may direct that a matter presented for consideration be 
placed on the agenda of a Commission meeting.
    (b) Quorum. A majority of the members of the Commission, constitutes 
a quorum for the transaction of business.
    (c) Any Commission action, either at a meeting or by written 
circulation, may be taken only with the affirmative concurrence of a 
majority of the participating Commissioners, except where a greater 
majority is required by statute or rule or where the action is taken 
pursuant to a valid delegation of authority. No Commissioner may 
delegate the authority to determine his or her vote in any matter 
requiring Commission action, but authority to report a Commissioner's 
vote on a particular matter resolved either by written circulation, or 
at a meeting held in the Commissioner's absence, may be vested in a 
member of the Commissioner's staff.

[42 FR 13540, Mar. 11, 1977, as amended at 50 FR 53306, Dec. 31, 1985]



Sec.  4.15  Commission meetings.

    (a) In general. (1) Meetings of the Commission, as defined in 5 
U.S.C. 552b(a)(2), are held at the principal office of the Commission, 
unless otherwise directed.
    (2) Initial announcements of meetings. For each meeting, the 
Commission shall announce:
    (i) The time, place and subject matter of the meeting,
    (ii) Whether the meeting will be open or closed to the public, and

[[Page 113]]

    (iii) The name and phone number of the official who will respond to 
requests for information about the meeting.

Such announcement shall be made at least one week before the meeting 
except that where the agency determines pursuant to 5 U.S.C. 552b(e)(1) 
to call the meeting on less than one week's notice, or where the agency 
determines to close the meeting pursuant to paragraph (c)(2) of this 
section, the announcement shall be made at the earliest practicable 
time.
    (3) Announcements of changes in meetings. Following the announcement 
of a meeting, any change in the time, place or subject matter will be 
announced at the earliest practicable time, and, except with respect to 
meetings closed under paragraph (c)(2) of this section, any change in 
the subject matter or decision to open or close a meeting shall be made 
only as provided in 5 U.S.C. 552b(e)(2).
    (4) Deletions from announcements. The requirements of paragraphs 
(a)(2) and (a)(3) of this section do not require the disclosure of any 
information pertaining to a portion of a closed meeting where such 
disclosure is likely to concern a matter within the scope of 5 U.S.C. 
552b(c).
    (5) Dissemination of notices. Notices required under paragraphs 
(a)(2) and (a)(3) of this section will be posted at the principal office 
of the Commission, recorded on a telephone message device, and, except 
as to notices of meetings closed under paragraph (c)(2) of this section, 
submitted to the Federal Register for publication. In addition, notices 
issued under paragraph (a)(2) of this section one week in advance of the 
meeting will be sent to all persons and organizations who have requested 
inclusion on a meeting notice mailing list, and will be issued as a 
press release to interested media.
    (b) Open meetings. (1) Commission meetings shall be open to public 
observation unless the Commission determines that portions may be closed 
pursuant to 5 U.S.C. 552b(c).
    (2) Any person whose interest may be directly affected if a portion 
of a meeting is open, may request that the Commission close that portion 
for any of the reasons described in 5 U.S.C. 552b(c). The Commission 
shall vote on such requests if at least one member desires to do so. 
Such requests shall be in writing, filed at the earliest practicable 
time, and describe how the matters to be discussed will have any of the 
effects enumerated in 5 U.S.C. 552b(c). Requests shall be addressed as 
follows:

Closed Meeting Request, Office of the General Counsel, Federal Trade 
Commission, 6th Street and Pennsylvania Avenue NW., Washington, DC 
20580.

    (3) The Commissioner to whom a matter has been assigned for 
presentation to the Commission shall have the authority to make 
available to the public, prior to consideration of that matter at an 
open meeting, material sufficient to inform the public of the issues 
likely to be discussed in connection with that matter.
    (c) Closed meetings. (1) Whenever the Commission votes to close a 
meeting or series of meetings under these rules, it shall make publicly 
available within one day notices both of such vote and the General 
Counsel's determination regarding certification under 5 U.S.C. 
552b(f)(1). Such determination by the General Counsel shall be made 
prior to the Commission vote to close a meeting or series of meetings. 
Further, except with respect to meetings closed under paragraph (c)(2) 
of this section, the Commission shall make publicly available within one 
day a full written explanation of its action in closing any meeting, and 
a list specifying the names and affiliations of all persons expected to 
attend, except Commission employees and consultants and any stenographer 
or court reporter attending for the sole purpose of preparing a verbatim 
transcript. All Commission employees and consultants may attend 
nonadjudicative portions of any closed meeting and members of 
Commissioners' personal staffs, the General Counsel and his staff, and 
the Secretary and his staff may attend the adjudicative portions of any 
closed meeting except to the extent the notice of a particular closed 
meeting otherwise specifically provides. Stenographers or court 
reporters may attend any closed meeting at which their services are 
required by the Commission.

[[Page 114]]

    (2) If a Commission meeting, or portions thereof, may be closed 
pursuant to 5 U.S.C. 552b(c)(10), the Commission may, by vote recorded 
at the beginning of the meeting, or portion thereof, close the portion 
or portions of the meeting so exempt.
    (3) Closed meeting transcripts or minutes required by 5 U.S.C. 
552b(f)(1) will be released to the public insofar as they contain 
information that either is not exempt from disclosure under 5 U.S.C. 
552b(c), or, although exempt, should be disclosed in the public 
interest. The Commission will determine whether to release, in whole or 
in part, the minutes of its executive sessions to consider oral 
arguments. With regard to all other closed meetings, the General Counsel 
or the General Counsel's designee shall determine, in accordance with 
Sec.  4.9(c), which portions of the transcripts or minutes may be 
released.
    (d) The presiding officer shall be responsible for preserving order 
and decorum at meetings and shall have all powers necessary to that end.

[42 FR 13541, Mar. 11, 1977; 42 FR 15409, Mar. 22, 1977, as amended at 
42 FR 62912, Dec. 14, 1977: 43 FR 1937, Jan. 13, 1978; 43 FR 35684, Aug. 
11, 1978; 63 FR 32978, June 17, 1998]



Sec.  4.16  Privilege against self-incrimination.

    Section 2.11 of Pub. L. 91-462 specifically repeals paragraph 7 of 
section 9 of the Federal Trade Commission Act. Title 18, section 6002, 
of the United States Code provides that whenever a witness refuses, on 
the basis of his privilege against self-incrimination, to testify or 
provide other information in a proceeding before or ancillary to:
    (a) A court or grand jury of the United States,
    (b) An agency of the United States, or
    (c) Either House of Congress, a joint committee of the two Houses, 
or a committee or a subcommittee of either House, and the person 
presiding over the proceeding communicates to the witness an order 
issued under section 6004, the witness may not refuse to comply with the 
order on the basis of his privilege against self-incrimination; but no 
testimony or other information compelled under the order (or any 
information directly or indirectly derived from such testimony or other 
information) may be used against the witness in any criminal case, 
except a prosecution for perjury, giving a false statement, or otherwise 
failing to comply with the order. Title 18, section 6004, of the United 
States Code provides that: (1) In the case of any individual who has 
been or who may be called to testify or provide other information at any 
proceeding before an agency of the United States, the agency may, with 
the approval of the Attorney General, issue, in accordance with 
subsection (b) of section 6004, an order requiring the individual to 
give testimony or provide other information which he refused to give or 
provide on the basis of his privilege against self-incrimination, such 
order to become effective as provided in title 18, section 6002, of the 
United States Code; (2) an agency of the United States may issue an 
order under subsection (a) of section 6004 only if in its judgment (i) 
the testimony or other information from such individual may be necessary 
to the public interest; and (ii) such individual has refused or is 
likely to refuse to testify or provide other information on the basis of 
his privilege against self-incrimination.

(18 U.S.C. 6002, 6004)

[37 FR 5017, Mar. 9, 1972. Redesignated at 45 FR 36345, May 29, 1980]



Sec.  4.17  Disqualification of Commissioners.

    (a) Applicability. This section applies to all motions seeking the 
disqualification of a Commissioner from any adjudicative or rulemaking 
proceeding.
    (b) Procedures. (1) Whenever any participant in a proceeding shall 
deem a Commissioner for any reason to be disqualified from participation 
in that proceeding, such participant may file with the Secretary a 
motion to the Commission to disqualify the Commissioner, such motion to 
be supported by affidavits and other information setting forth with 
particularity the alleged grounds for disqualification.
    (2) Such motion shall be filed at the earliest practicable time 
after the participant learns, or could reasonably have learned, of the 
alleged grounds for disqualification.

[[Page 115]]

    (3)(i) Such motion shall be addressed in the first instance by the 
Commissioner whose disqualification is sought.
    (ii) In the event such Commissioner declines to recuse himself or 
herself from further participation in the proceeding, the Commission 
shall determine the motion without the participation of such 
Commissioner.
    (c) Standards. Such motion shall be determined in accordance with 
legal standards applicable to the proceeding in which such motion is 
filed.

(15 U.S.C. 46(g))

[46 FR 45750, Sept. 15, 1981]



PART 5_STANDARDS OF CONDUCT--Table of Contents




Subpart A_Employee Conduct Standards and Financial Conflicts of Interest

Sec.
5.1 Cross-reference to executive branch-wide regulations.
5.2 Exemption of insubstantial financial conflicts.

               Subpart B_Financial Disclosure Requirements

5.10 Cross-reference to executive branch-wide regulations.

Subparts C-D [Reserved]

  Subpart E_Disciplinary Actions Concerning Postemployment Conflict of 
                                Interest

5.51 Scope and applicability.
5.52 Nonpublic proceedings.
5.53 Initiation of investigation.
5.54 Referral to the Office of Government Ethics and to the Department 
          of Justice.
5.55 Conduct of investigation.
5.56 Disposition.
5.57 Order to show cause.
5.58 Answer and request for a hearing.
5.59 Presiding official.
5.60 Scheduling of hearing.
5.61 Prehearing procedures; motions; interlocutory appeals; summary 
          decision; discovery; compulsory process.
5.62 Hearing rights of respondent.
5.63 Evidence; transcript; in camera orders; proposed findings of fact 
          and conclusions of law.
5.64 Initial decision.
5.65 Review of initial decision.
5.66 Commission decision and reconsideration.
5.67 Sanctions.
5.68 Judicial review.

    Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 
1978); 15 U.S.C. 46(g); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 
215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 
5 CFR part 2635, unless otherwise noted.

    Source: 32 FR 13272, Sept. 20, 1967, unless otherwise noted. 
Redesignated at 41 FR 54483, Dec. 14, 1976.



Subpart A_Employee Conduct Standards and Financial Conflicts of Interest



Sec.  5.1  Cross-reference to executive branch-wide regulations.

    Commissioners and employees, including special government employees, 
of the Federal Trade Commission (FTC) are subject to and should refer to 
the ``Standards of Ethical Conduct for Employees of the Executive 
Branch'' at 5 CFR part 2635 (``executive branch-wide Standards of 
Conduct'') and to the FTC regulations at 5 CFR 5701 that supplement the 
executive branch-wide Standards of Conduct.

[58 FR 15764, Mar. 24, 1993, as amended at 64 FR 42594, Aug. 5, 1999]



Sec.  5.2  Exemption of insubstantial financial conflicts.

    (a) An employee or special Government employee will not be subject 
to remedial or disciplinary action or to criminal prosecution under 18 
U.S.C. 208(a), if he makes a full disclosure in writing to the official 
responsible for his appointment of the nature and circumstances of the 
particular matter involved and of his conflicting financial interest 
relating thereto, and receives in advance a written determination made 
by such official that the interest is not so substantial as to be deemed 
likely to affect the integrity of the services which the Government may 
expect from the employee or special Government employee.
    (b) For the purposes of paragraph (a) of this section, the 
``official responsible for appointment'' shall be the Executive Director 
in all cases where the employee is classified at grade GS-15 or below, 
or at a comparable pay level, except that each Commissioner shall be the 
``official responsible for appointment'' of advisors in the 
Commissioner's immediate office.

[[Page 116]]

    (c) In all other cases, the Chairman shall be the ``official 
responsible for appointment.''
    (d) Pursuant to 5 CFR part 2640, certain financial interests are 
exempted from the provisions of 18 U.S.C. 208(a) as being too remote too 
inconsequential to affect the integrity of an employee's services.

[58 FR 15764, Mar. 24, 1993, as amended at 63 FR 35130, June 29, 1998]



               Subpart B_Financial Disclosure Requirements



Sec.  5.10  Cross-reference to executive branch-wide regulations.

    Commissioners and employees, including special government employees, 
of the Federal Trade Commission are subject to and should refer to the 
executive branch-wide financial disclosure regulations at 5 CFR part 
2634, and to the procedures for filing and review of financial 
disclosure reports found in Chapter 3 of the FTC Administrative Manual.

[58 FR 15765, Mar. 24, 1993]

Subparts C-D [Reserved]



  Subpart E_Disciplinary Actions Concerning Postemployment Conflict of 
                                Interest

    Authority: 15 U.S.C. 41 et seq.

    Source: 46 FR 26050, May 11, 1981, unless otherwise noted.



Sec.  5.51  Scope and applicability.

    These regulations establish procedures for investigating and 
determining alleged violations of 18 U.S.C. 207 (postemployment 
restrictions applicable to federal employees) or regulations issued by 
the Office of Government Ethics, set forth in 5 CFR parts 2637 and 2641, 
reflecting the views of the Office of Government Ethics and the 
Department of Justice as to the requirements of 18 U.S.C. 207.

[58 FR 15765, Mar. 24, 1993]



Sec.  5.52  Nonpublic proceedings.

    Any investigation or proceedings held under this part shall be 
nonpublic unless the respondent specifically requests otherwise, except 
to the extent required by the Freedom of Information Act (5 U.S.C. 552) 
or by the Sunshine Act (5 U.S.C. 552b). However, the presiding 
official's initial decision and any final decision of the Commission 
shall be placed on the public record, except that information may be 
designated in camera in accordance with Sec.  3.45 of the Commission's 
Rules of Practice.



Sec.  5.53  Initiation of investigation.

    (a) Investigations under this part may be initiated upon the 
submission by any person of a written statement to the Secretary setting 
forth sufficient information to indicate a possible violation of 18 
U.S.C. 207 or by the Commission on its own initiative when a possible 
violation is indicated by information within the Commission's 
possession.
    (b) At the direction of the Commission, the General Counsel shall 
investigate any alleged violation of 18 U.S.C. 207.



Sec.  5.54  Referral to the Office of Government Ethics and to the 
Department of Justice.

    (a) The General Counsel shall make a preliminary determination of 
whether the matter appears frivolous and, if not, shall expeditiously 
transmit any available information to the Director of the Office of 
Government Ethics and to the Criminal Division, Department of Justice.
    (b) Unless the Department of Justice communicates to the Commission 
that it does not intend to initiate criminal prosecution, the General 
Counsel shall coordinate any investigation or proceeding under this part 
with the Department of Justice in order to avoid prejudicing criminal 
proceedings.



Sec.  5.55  Conduct of investigation.

    (a) The General Counsel may (1) exercise the authority granted in 
Sec.  2.5 of the Commission's Rules of Practice to administer oaths and 
affirmations; and (2) conduct investigational hearings pursuant to part 
2 of these rules. He

[[Page 117]]

may also recommend that the Commission issue compulsory process in 
connection with an investigation under this section.
    (b) Witnesses in investigations shall have the rights set forth in 
Sec.  2.9 of the Commission's Rules of Practice.



Sec.  5.56  Disposition.

    (a) Upon the conclusion of an investigation under this part, the 
General Counsel shall forward to the Commission a summary of the facts 
disclosed by the investigation along with a recommendation as to whether 
the Commission should issue an order to show cause pursuant to Sec.  
5.57.
    (b) When the former government employee involved is an attorney, the 
General Counsel shall also recommend whether the matter should be 
referred to the disciplinary committee of the bar(s) of which the 
attorney is a member.



Sec.  5.57  Order to show cause.

    (a) Upon a Commission determination that there exists reasonable 
cause to believe a former government employee has violated 18 U.S.C. 
207, the Commission may issue an order requiring the former employee to 
show cause why sanctions should not be imposed.
    (b) The show cause order shall contain:
    (1) The statutory provisions alleged to have been violated and a 
clear and concise description of the acts of the former employee that 
are alleged to constitute the violation;
    (2) Notice of the respondent's right to submit an answer and request 
a hearing, and the time and manner in which the request is to be made; 
and
    (3) A statement of the sanctions that may be imposed pursuant to 
Sec.  5.67 of this part.
    (c) Subsequent to the issuance of an order to show cause, any 
communications to or from the Commission or any member of the Commission 
shall be governed by the ex parte provisions of Sec.  4.7 of the 
Commission's Rules of Practice. 16 CFR 4.7.



Sec.  5.58  Answer and request for a hearing.

    (a) An answer and request for a hearing must be filed with the 
Secretary of the Commission within thirty (30) days after service of the 
order to show cause.
    (b) In the absence of good cause shown, failure to file an answer 
and request for a hearing within the specified time limit:
    (1) Will be deemed a waiver of the respondent's right to contest the 
allegations of the show cause order or request a hearing and
    (2) Shall authorize the Commission to find the facts to be as 
alleged in the show cause order and enter a final decision providing for 
the imposition of such sanctions specified in Sec.  5.67 as the 
Commission deems appropriate.
    (c) An answer shall contain (1) a concise statement of the facts or 
law constituting each ground of defense and (2) specific admission, 
denial, or explanation of each fact alleged in the show cause order or, 
if the respondent is without knowledge thereof, a statement to that 
effect. Any allegations of a complaint not answered in this manner will 
be deemed admitted.
    (d) Hearings shall be deemed waived as to any facts in the show 
cause order that are specifically admitted or deemed to be admitted as a 
result of respondent's failure to deny them. Those portions of 
respondent's answer, together with the show cause order, will provide a 
record basis for initial decision by the Administrative Law Judge or for 
final decision by the Commission.
    (e) If all material factual allegations of the show cause order are 
specifically admitted or have been deemed admitted in accordance with 
paragraph (c) of this section, the Commission will decide the matter on 
the basis of the allegations set forth in the show cause order and 
respondent's answer.



Sec.  5.59  Presiding official.

    (a) Upon the receipt of an answer and request for a hearing, the 
Secretary shall refer the matter to the Chief Administrative Law Judge, 
who shall appoint an Administrative Law Judge to preside over the 
hearing and shall notify the respondent and the General Counsel as to 
the person selected.
    (b) The powers and duties of the presiding official shall be as set 
forth in

[[Page 118]]

Sec.  3.42(b) through (h) of the Commission's Rules of Practice.



Sec.  5.60  Scheduling of hearing.

    The presiding official shall fix the date, time and place of the 
hearing. The hearing shall not be scheduled earlier than fifteen days 
after receipt of the respondent's answer and request for a hearing. In 
fixing the time, date and place of the hearing, the presiding official 
shall give due regard to the respondent's need for adequate time to 
prepare a defense and an expeditious resolution of allegations that may 
be damaging to his or her reputation.



Sec.  5.61  Prehearing procedures; motions; interlocutory appeals; 
summary decision; discovery; compulsory process.

    Because of the nature of the issues involved in proceedings under 
this part, the Commission anticipates that extensive motions, prehearing 
proceedings and discovery will not be required in most cases. For this 
reason, detailed procedures will not be established under this part. 
However, to the extent deemed warranted by the presiding official, 
prehearing conferences, motions, interlocutory appeals, summary 
decisions, discovery and compulsory process shall be permitted and shall 
be governed, where appropriate, by the provisions set forth in subparts 
C and D, part 3, of the Commission's Rules of Practice.



Sec.  5.62  Hearing rights of respondent.

    In any hearing under this subpart, the respondent shall have the 
right:
    (a) To be represented by counsel;
    (b) To present and cross-examine witnesses and submit evidence;
    (c) To present objections, motions, and arguments, oral or written; 
and
    (d) To obtain a transcript of the proceedings on request.



Sec.  5.63  Evidence; transcript; in camera orders; proposed findings 
of fact and conclusions of law.

    Sections 3.43, 3.44, 3.45, and 3.46 of the Commission's Rules of 
Practice shall govern, respectively, the receipt and objections to 
admissibility of evidence, the transcript of the hearing, in camera 
orders and the submission and consideration of proposed findings of fact 
and conclusions of law except that (a) a copy of the hearing transcript 
shall be provided the respondent; and (b) the Commission has the burden 
of establishing, by a preponderance of the evidence on the record as a 
whole, the allegations stated in the order to show cause.



Sec.  5.64  Initial decision.

    Section 3.51 of the Commission's Rules of Practice shall govern the 
initial decision in proceedings under this subpart, except that the 
determination of the Administrative Law Judge must be supported by a 
preponderance of the evidence.



Sec.  5.65  Review of initial decision.

    Appeals from the initial decision of the Administrative Law Judge or 
review by the Commission in the absence of an appeal shall be governed 
by Sec. Sec.  3.52 and 3.53 of the Commission's Rules of Practice except 
that oral arguments shall be nonpublic subject to the exceptions stated 
in Sec.  3.52 of this part.



Sec.  5.66  Commission decision and reconsideration.

    The Commission's decision and any reconsideration or reopening of 
the proceeding shall be governed by Sec. Sec.  2.51, 3.54, 3.55, 3.71 
and 3.72 of the Commission's Rules of Practice, except that (a) if the 
initial decision is modified or reversed, the Commission shall specify 
such findings of fact and conclusions of law as are different from those 
of the presiding official; and (b) references therein to ``court of 
appeals'' shall be deemed for purposes of proceedings under this part to 
refer to ``district court.''



Sec.  5.67  Sanctions.

    In the case of any respondent who fails to request a hearing after 
receiving adequate notice of the allegations pursuant to Sec.  5.57 or 
who is found in the Commission's final decision to have violated 18 
U.S.C. 207 (a), (b), or (c), the Commission may order such disciplinary 
action as it deems warranted, including:
    (a) Reprimand;

[[Page 119]]

    (b) Suspension from participating in a particular matter or matters 
before the Commission; or
    (c) Prohibiting the respondent from making, with the intent to 
influence, any formal or informal appearance before, or any oral or 
written communication to, the Commission or its staff on any matter or 
business on behalf of any other person (except the United States) for a 
period not to exceed five (5) years.



Sec.  5.68  Judicial review.

    A respondent against whom the Commission has issued an order 
imposing disciplinary action under this part may seek judicial review of 
the Commission's determination in an appropriate United States District 
Court by filing a petition for such review within sixty (60) days of 
receipt of notice of the Commission's final decision.



PART 6_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL TRADE COMMISSION--Table of Contents




Sec.
6.101 Purpose.
6.102 Application.
6.103 Definitions.
6.104-6.109 [Reserved]
6.110 Self-evaluation.
6.111 Notice.
6.112-6.129 [Reserved]
6.130 General prohibitions against discrimination.
6.131-6.139 [Reserved]
6.140 Employment.
6.141-6.148 [Reserved]
6.149 Program accessibility: Discrimination prohibited.
6.150 Program accessibility: Existing facilities.
6.151 Program accessibility: New construction and alterations.
6.152 Program accessibility: Electronic and information technology.
6.153-6.159 [Reserved]
6.160 Communications.
6.161-6.169 [Reserved]
6.170 Compliance procedures.
6.171-6.999 [Reserved]

    Authority: 29 U.S.C. 794, 794d.

    Source: 52 FR 45628, Dec. 1, 1987, unless otherwise noted.



Sec.  6.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service. This part also implements section 508 of the Rehabilitation Act 
of 1973, as amended, with respect to the accessibility of electronic and 
information technology developed, procured, maintained, or used by the 
agency.

[52 FR 45628, Dec. 1, 1987, as amended at 66 FR 51863, Oct. 11, 2001]



Sec.  6.102  Application.

    This part applies to all programs or activities conducted by the 
Commission except for programs or activities conducted outside the 
United States that do not involve individuals with handicaps in the 
United States.



Sec.  6.103  Definitions.

    For purposes of this part, the term--
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and to enjoy the benefits of, programs or 
activities conducted by the Commission. For example, auxiliary aids 
useful for persons with impaired vision include readers, Brailled 
materials, audio recordings, and other similar services and devices. 
Auxiliary aids useful for persons with impaired hearing include 
telephone handset amplifiers, telephones compatible with hearing aids, 
telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Commission means the Federal Trade Commission.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the Commission's alleged 
discriminatory action in sufficient detail to inform the Commission of 
the nature and date of the alleged violation of section

[[Page 120]]

504. It shall be signed by the complainant or by someone authorized to 
do so on his or her behalf. Complaints filed on behalf of classes or 
third parties shall describe or identify (by name, if possible) the 
alleged victims of discrimination.
    Electronic and information technology includes information 
technology and any equipment or interconnected system or subsystem of 
equipment that is used in the creation, conversion, or duplication of 
data or information. The term includes, but is not limited to, 
telecommunications products (such as telephones), information kiosks and 
transaction machines, World Wide Web sites, multimedia, and office 
equipment such as copiers and fax machines. The term does not include 
any equipment that contains embedded information technology that is used 
as an integral part of the product, but the principal function of which 
is not the acquisition, storage, manipulation, management, movement, 
control, display, switching, interchange, transmission, or reception of 
data or information. For example, HVAC (heating, ventilation, and air 
conditioning) equipment such as thermostats or temperature control 
devices, and medical equipment where information technology is integral 
to its operation are not electronic and information technology.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Commission as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the Commission as having such an 
impairment.
    Information technology means any equipment or interconnected system 
or subsystem of equipment that is used in the automatic acquisition, 
storage, manipulation, management, movement, control, display, 
switching, interchange, transmission, or reception of data or 
information. The term ``information technology'' includes computers, 
ancillary equipment, software, firmware and similar procedures, services 
(including support services), and related resources.
    Qualified individual with handicaps means--
    (1) With respect to any Commission program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment,

[[Page 121]]

an individual with handicaps who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the Commission can 
demonstrate would result in a fundamental alteration in its nature; and
    (2) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702 (f), which is made applicable 
to this part by Sec.  6.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955) and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Section 508 means section 508 of the Rehabilitation Act of 1973, as 
amended.

[52 FR 45628, Dec. 1, 1987, as amended at 66 FR 51863, Oct. 11, 2001]



Sec. Sec.  6.104-6.109  [Reserved]



Sec.  6.110  Self-evaluation.

    (a) The Commission shall, by February 1, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the Commission shall 
proceed to make the necessary modifications.
    (b) The Commission shall provide an opportunity to interested 
persons, including individuals with handicaps or organizations 
representing individuals with handicaps, to participate in the self-
evaluation process by submitting comments (both oral and written).
    (c) The Commission shall, for at least three years following 
completion of the self-evaluation required under paragraph (a) of this 
section, maintain on file and make available for public inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec.  6.111  Notice.

    The Commission shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the Commission, and make such 
information available to them in such manner as the Chairman or his or 
her designee finds necessary to apprise such persons of the protections 
against discrimination assured to them by section 504 and this 
regulation.



Sec. Sec.  6.112-6.129  [Reserved]



Sec.  6.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the Commission.
    (b)(1) The Commission, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangements, on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;

[[Page 122]]

    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Commission may not deny a qualified individual with 
handicaps the opportunity to participate in programs or activities that 
are not separate or different, despite the existence of permissibly 
separate or different programs or activities.
    (3) The Commission may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The Commission may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the Commission; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The Commission, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The Commission shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with handicaps.



Sec. Sec.  6.131-6.139  [Reserved]



Sec.  6.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the Commission. The definitions, requirements 
and procedures of section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791), as established by the Equal Employment Opportunity 
Commission in 29 CFR part 1613, shall apply to employment in federally 
conducted programs or activities.



Sec. Sec.  6.141-6.148  [Reserved]



Sec.  6.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  6.150, no qualified 
individuals with handicaps shall, because the Commission's facilities 
are inaccessible to or unusable by individuals with handicaps, be denied 
the benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the Commission.



Sec.  6.150  Program accessibility: Existing facilities.

    (a) General. The Commission shall operate each program or activity 
so that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the Commission to make each of its existing 
facilities accessible to and usable by individuals with handicaps, or
    (2) Require the Commission to take any action that it can 
demonstrate

[[Page 123]]

would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where Commission personnel believe that the proposed 
action would fundamentally alter the program or activity or would result 
in undue financial and administrative burdens, the Commission has the 
burden of proving that compliance with Sec.  6.150(a) would result in 
such alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Chairman or his or her 
designee after considering all Commission resources available for use in 
the funding and operation of the conducted program or activity, and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the Commission shall take any other action that would not 
result in such an alteration or such burdens, but would, nevertheless, 
ensure that individuals with handicaps receive the benefits and services 
of the program or activity.
    (b) Methods. The Commission may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any methods that result in making 
its programs or activities readily accessible to and usable by 
individuals with handicaps. The Commission is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Commission, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157) and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the Commission shall give priority to 
those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (c) Time period for compliance. The Commission shall comply with the 
obligations established under this section by April 1, 1988, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by February 1, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Commission shall develop, by August 1, 1988, a transition plan setting 
forth the steps necessary to complete such changes. The Commission shall 
provide an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the Commission's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period;
    (4) Indicate the official responsible for implementation of the 
plan; and
    (5) Identify the persons or groups with whose assistance the plan 
was prepared.



Sec.  6.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Commission shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607,

[[Page 124]]

apply to buildings covered by this section.



Sec.  6.152  Program accessibility: Electronic and information technology.

    (a) When developing, procuring, maintaining, or using electronic and 
information technology, the Commission shall ensure, unless an undue 
burden would be imposed on the agency, that the electronic and 
information technology allows, regardless of the type of medium of the 
technology:
    (1) individuals with disabilities who are employees to have access 
to and use of information and data that is comparable to the access to 
and use of the information and data by employees who are not individuals 
with disabilities; and
    (2) individuals with disabilities who are members of the public 
seeking information or services from the Commission to have access to 
and use of information and data that is comparable to the access to and 
use of the information and data by members of the public who are not 
individuals with disabilities.
    (b) When the development, procurement, maintenance, or use of 
electronic and information technology that meets the standards published 
by the Architectural and Transportation Barriers Compliance Board 
pursuant to section 508(a)(2) of the Rehabilitation Act of 1973, as 
amended, would impose an undue burden on the Commission, the Commission 
shall provide individuals with disabilities covered by paragraph (a) of 
this section with the information and data involved by an alternative 
means of access that allows such individuals to use the information and 
data.
    (c) This section shall not apply to any matter legally exempted by 
section 508, by the standards referenced in paragraph (b) of this 
section, or by other applicable law or regulation. Nothing in this 
section shall be construed to limit any right, remedy, or procedure 
otherwise available under any provision of federal law (including 
sections 501 through 505 of the Rehabilitation Act of 1973, as amended) 
that provides greater or equal protection for the rights of individuals 
with disabilities than section 508.

[66 FR 51863, Oct. 11, 2001]



Sec. Sec.  6.153-6.159  [Reserved]



Sec.  6.160  Communications.

    (a) The Commission shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Commission shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Commission.
    (i) In determining what type of auxiliary aid is necessary, the 
Commission shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The Commission need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature.
    (2) Where the Commission communicates with applicants and 
beneficiaries by telephone, telecommunication devices for deaf persons 
(TDD's), or equally effective telecommunication systems shall be used.
    (b) The Commission shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Commission shall provide signs at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the Commission to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity, or in undue financial and 
administrative burdens. In those circumstances where Commission 
personnel believe that the proposed action would fundamentally alter the 
program or activity or would

[[Page 125]]

result in undue financial and administrative burdens, the Commission has 
the burden of proving that compliance with Sec.  6.160 would result in 
such alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Chairman or his or her 
designee after considering all Commission resources available for use in 
the funding and operation of the conducted program or activity, and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the Commission shall take 
any other action that would not result in such an alteration or burdens 
but would nevertheless ensure that, to the maximum extent possible, 
individuals with handicaps receive the benefits and services of the 
program or activity.



Sec. Sec.  6.161-6.169  [Reserved]



Sec.  6.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the Commission.
    (b) The Commission shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791). The Commission shall apply the same procedures to process 
complaints alleging violations of section 508. Complaints alleging a 
violation of section 508 may not be filed with respect to any exempted 
matters as described in Sec.  6.152(c) of this chapter, and may be filed 
only with respect to electronic and information technology procured by 
the Commission on or after June 21, 2001.
    (c) Responsibility for implementation and operation of this section 
is vested in the Director of Equal Employment Opportunity.
    (d)(1) A complete complaint under this section may be filed by any 
person who believes that he or she or any specific class of persons of 
which he or she is a member has been subjected to discrimination 
prohibited by this part. The complaint may also be filed by an 
authorized representative of any such person.
    (2) The complaint must be filed within 180 days of the alleged act 
of discrimination unless the Director of Equal Employment Opportunity 
extends the time period for good cause.
    (3) The complaint must be addressed to the Director of Equal 
Employment Opportunity, Federal Trade Commission, 600 Pennsylvania 
Avenue, NW., Washington, DC 20580.
    (e) If the Director of Equal Employment Opportunity receives a 
complaint over which the Commission does not have jurisdiction, he or 
she shall promptly notify the complainant and shall make reasonable 
efforts to refer the complaint to the appropriate Government entity.
    (f) The Director of Equal Employment Opportunity shall notify the 
Architectural and Transportation Barriers Compliance Board upon receipt 
of any complaint alleging that a building or facility that is subject to 
the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157) 
is not readily accessible to and usable by individuals with handicaps.
    (g)(1) The Director of Equal Employment Opportunity shall accept and 
investigate a complete complaint that is filed in accordance with 
paragraph (d) of this section and over which the Commission has 
jurisdiction.
    (2) If the Director of Equal Employment Opportunity receives a 
complaint that is not complete (see Sec.  6.103), he or she shall, 
within 30 days thereafter, notify the complainant that additional 
information is needed. If the complainant fails to complete the 
complaint within 30 days of the date of the Director's notice, the 
Director of Equal Employment Opportunity may dismiss the complaint 
without prejudice.
    (h) Within 180 days of the receipt of a complete complaint over 
which the Commission has jurisdiction, the Director of Equal Employment 
Opportunity shall notify the complainant of the results of the 
investigation in a letter containing--

[[Page 126]]

    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal to the Commission's General 
Counsel.
    (i)(1) An appeal under this section must be filed within 90 days of 
the complainant's receipt of the letter under paragraph (h) of this 
section unless the General Counsel extends the time period for good 
cause.
    (2) The appeal must be addressed to the General Counsel, Federal 
Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.
    (3) The appeal shall specify the questions raised by the appeal and 
the arguments on the points of fact and law relied upon in support of 
the position taken on each question; and it shall include copies of the 
complaint filed under paragraph (d) of this section and the letter by 
the Director of Equal Employment Opportunity under paragraph (h) of this 
section as well as any other material relied upon in support of the 
appeal.
    (j) The General Counsel shall notify the complainant of the results 
of the appeal within 60 days of the receipt of the appeal. If the 
General Counsel determines that additional information is needed from 
the complainant, the General Counsel shall have 60 days from the date of 
receipt of the additional information to make a final determination on 
the appeal. The General Counsel may submit the appeal to the Commission 
for final determination provided that any final determination of the 
appeal is made by the Commission within the 60-day period specified by 
this paragraph.
    (k) The time limits specified by paragraphs (h) and (j) of this 
section may be extended by the Chairman for good cause.
    (l) The Commission may delegate its authority for conducting 
complaint investigations to other Federal agencies, except that the 
authority for making the final determination may not be delegated.

[52 FR 45628, Dec. 1, 1987, as amended at 66 FR 51864, Oct. 11, 2001]



Sec. Sec.  6.171-6.999  [Reserved]



PART 14_ADMINISTRATIVE INTERPRETATIONS, GENERAL POLICY STATEMENTS, 
AND ENFORCEMENT POLICY STATEMENTS--Table of Contents




Sec.
14.9 Requirements concerning clear and conspicuous disclosures in 
          foreign language advertising and sales materials.
14.12 Use of secret coding in marketing research.
14.15 In regard to comparative advertising.
14.16 Interpretation of Truth-in-Lending Orders consistent with 
          amendments to the Truth-in-Lending Act and Regulation Z.

    Authority: 15 U.S.C. 41-58.



Sec.  14.9  Requirements concerning clear and conspicuous disclosures 
in foreign language advertising and sales materials.

    The Federal Trade Commission has noted that, with increasing 
intensity, advertisers are making special efforts to reach foreign 
language-speaking consumers. As part of this special effort, 
advertisements, brochures and sales documents are being printed in 
foreign languages. In recent years the Commission has issued various 
cease-and-desist orders as well as rules, guides and other statements, 
which require affirmative disclosures in connection with certain kinds 
of representations and business activities. Generally, these disclosures 
are required to be ``clear and conspicuous.'' Because questions have 
arisen as to the meaning and application of the phrase ``clear and 
conspicuous'' with respect to foreign language advertisements and sales 
materials, the Commission deems it appropriate to set forth the 
following enforcement policy statement:
    (a) Where cease-and-desist orders as well as rules, guides and other 
statements require ``clear and conspicuous'' disclosure of certain 
information in an advertisement or sales material in a newspaper, 
magazine, periodical, or other publication that is not in English, the 
disclosure shall appear in the predominant language of the publication 
in which the advertisement or sales material appears. In the case of any 
other advertisement or sales material, the disclosure shall appear in 
the

[[Page 127]]

language of the target audience (ordinarily the language principally 
used in the advertisement or sales material).
    (b) Any respondent who fails to comply with this requirement may be 
the subject of a civil penalty or other law enforcement proceeding for 
violating the terms of a Commission cease-and-desist order or rule.

(Sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45)

[38 FR 21494, Aug. 9, 1973, as amended at 63 FR 34808, June 26, 1998]



Sec.  14.12  Use of secret coding in marketing research.

    (a) The Federal Trade Commission has determined to close its 
industry-wide investigation of marketing research firms that was 
initiated in November 1975, to determine if the firms were using 
questionnaires with invisible coding that could be used to reveal a 
survey respondent's identity. After a thorough investigation, the 
Commission has determined that invisible coding has been used by the 
marketing research industry, but it is neither a commonly used nor 
widespread practice. Moreover, use of the practice appears to have 
diminished in recent years. For these reasons, the Commission has 
determined that further action is not warranted at this time.
    (b) However, for the purpose of providing guidance to the marketing 
research industry, the Commission is issuing the following statement 
with regard to its future enforcement intentions. The Commission has 
reason to believe that it is an unfair or deceptive act or practice, 
violative of section 5 of the Federal Trade Commission Act (15 U.S.C. 
45) to induce consumers to provide information about themselves by 
expressly or implicitly promising that such information is being 
provided anonymously, when, in fact, a secret or invisible code is used 
on the survey form or return envelope that allows identification of the 
consumer who has provided the information.
    (c) While the Commission has made no final determination regarding 
the legality of the foregoing practice, the Commission will take 
appropriate enforcement action should it discover the practice to be 
continuing in the future, and in the event that it may be causing 
substantial consumer injury. Among the circumstances in which the 
Commission believes that the use of secret coding may cause significant 
consumer harm are those in which:
    (1) A misleading promise of anonymity is used to obtain highly 
sensitive information about a consumer that such consumer would not 
choose to disclose if he or she were informed that a code was being used 
that would allow his or her name to be associated with the response; and
    (2) Information of any sort is used for purposes other than those of 
the market survey.

[43 FR 42742, Sept. 21, 1978]



Sec.  14.15  In regard to comparative advertising.

    (a) Introduction. The Commission's staff has conducted an 
investigation of industry trade associations and the advertising media 
regarding their comparative advertising policies. In the course of this 
investigation, numerous industry codes, statements of policy, 
interpretations and standards were examined. Many of the industry codes 
and standards contain language that could be interpreted as discouraging 
the use of comparative advertising. This Policy Statement enunciates the 
Commission's position that industry self-regulation should not restrain 
the use by advertisers of truthful comparative advertising.
    (b) Policy Statement. The Federal Trade Commission has determined 
that it would be of benefit to advertisers, advertising agencies, 
broadcasters, and self-regulation entities to restate its current policy 
concerning comparative advertising. \1\ Commission policy in the area of 
comparative advertising encourages the naming of, or reference to 
competitiors, but requires clarity, and, if necessary, disclosure to 
avoid deception of the consumer. Additionally, the use of truthful 
comparative advertising should not be restrained by broadcasters or 
self-regulation entities.
---------------------------------------------------------------------------

    \1\ For purposes of this Policy Statement, comparative advertising 
is defined as advertising that compares alternative brands on 
objectively measurable attributes or price, and identifies the 
alternative brand by name, illustration or other distinctive 
information.

---------------------------------------------------------------------------

[[Page 128]]

    (c) The Commission has supported the use of brand comparisions where 
the bases of comparision are clearly identified. Comparative 
advertising, when truthful and nondeceptive, is a source of important 
information to consumers and assists them in making rational purchase 
decisions. Comparative advertising encourages product improvement and 
innovation, and can lead to lower prices in the marketplace. For these 
reasons, the Commission will continue to scrutinize carefully restraints 
upon its use.
    (1) Disparagement. Some industry codes which prohibit practices such 
as ``disparagement,'' ``disparagement of competitors,'' ``improper 
disparagement,'' ``unfairly attaching,'' ``discrediting,'' may operate 
as a restriction on comparative advertising. The Commission has 
previously held that disparaging advertising is permissible so long as 
it is truthful and not deceptive. In Carter Products, Inc., 60 F.T.C. 
782, modified, 323 F.2d 523 (5th Cir. 1963), the Commission narrowed an 
order recommended by the hearing examiner which would have prohibited 
respondents from disparaging competing products through the use of false 
or misleading pictures, depictions, or demonstrations, ``or otherwise'' 
disparaging such products. In explaining why it eliminated ``or 
otherwise'' from the final order, the Commission observed that the 
phrase would have prevented:

    respondents from making truthful and non-deceptive statements that a 
product has certain desirable properties or qualities which a competing 
product or products do not possess. Such a comparison may have the 
effect of disparaging the competing product, but we know of no rule of 
law which prevents a seller from honestly informing the public of the 
advantages of its products as opposed to those of competing products. 60 
F.T.C. at 796.


Industry codes which restrain comparative advertising in this manner are 
subject to challenge by the Federal Trade Commission.
    (2) Substantiation. On occasion, a higher standard of substantiation 
by advertisers using comparative advertising has been required by self-
regulation entities. The Commission evaluates comparative advertising in 
the same manner as it evaluates all other advertising techniques. The 
ultimate question is whether or not the advertising has a tendency or 
capacity to be false or deceptive. This is a factual issue to be 
determined on a case-by-case basis. However, industry codes and 
interpretations that impose a higher standard of substantiation for 
comparative claims than for unilateral claims are inappropriate and 
should be revised.

(Sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45)

[44 FR 47328, Aug. 13, 1979]



Sec.  14.16  Interpretation of Truth-in-Lending Orders consistent with 
amendments to the Truth-in-Lending Act and Regulation Z.

                              Introduction

    The Federal Trade Commission (FTC) has determined that there is a 
need to clarify the compliance responsibilities under the Truth-in-
Lending Act (TILA) (Title I, Consumer Credit Protection Act, 15 U.S.C. 
1601 et seq.), as amended by the Truth-in-Lending Simplification and 
Reform Act of 1980 (Pub. L. 96-221, 94 Stat. 168), and under revised 
Regulation Z (12 CFR part 226, 46 FR 20848), and subsequent amendments 
to the TILA and Regulation Z, of those creditors and advertisers who are 
subject to final cease and desist orders that require compliance with 
provisions of the Truth-in-Lending statute or Regulation Z. 
Clarification is necessary because the Truth-in-Lending Simplification 
and Reform Act and revised Regulation Z significantly relaxed prior 
Truth-in-Lending requirements on which provisions of numerous 
outstanding orders were based. The Policy Statement provides that the 
Commission will interpret and enforce Truth-in-Lending provisions of all 
orders so as to impose no greater or different disclosure obligations on 
creditors and advertisers named in such orders than are required 
generally of creditors and advertisers under the TILA and Regulation Z, 
and subsequent amendments to the TILA and Regulation Z.

                            Policy Statement

    (a) All cease and desist orders issued by the FTC that require 
compliance

[[Page 129]]

with provisions of the Truth-in-Lending Act and Regulation Z (12 CFR 
part 226) will be interpreted and enforced consistent with the 
amendments to the TILA incorporated by the Truth-in-Lending 
Simplification and Reform Act of 1980, and the revision of Regulation Z 
implementing the same, promulgated on April 1, 1981 by the Board of 
Governors of the Federal Reserve System (46 FR 20848), and by subsequent 
amendments to the TILA and Regulation Z. Likewise, the Federal Reserve 
Board staff commentary to revised Regulation Z (46 FR 50288, October 9, 
1981), and subsequent revisions to the Federal Reserve Board staff 
commentary to Regulation Z, will be considered in interpreting the 
requirements of existing orders.
    (b) After an amendment to Regulation Z becomes effective, compliance 
with the revised credit disclosure requirements will be considered 
compliance with the existing order, and:
    (1) To the extent that revised Regulation Z deletes disclosure 
requirements imposed by any Commission order, compliance with these 
requirements will no longer be required; however,
    (2) To the extent that revised Regulation Z imposes additional 
disclosure or format requirements, a failure to comply with the added 
requirements will be considered a violation of the TILA.
    (c) A creditor or advertiser must continue to comply with all 
provisions of the order which do not relate to Truth-in-Lending Act 
requirements or are unaffected by Regulation Z. These provisions are not 
affected by this policy statement and will remain in full force and 
effect.

                          Staff Clarifications

    The Commission intends that this Enforcement Policy Statement 
obviate the need for any creditor or advertiser to file a petition to 
reopen and modify any affected order under section 2.51 of the 
Commission's rules of practice (16 CFR 2.51). However, the Commission 
recognizes that the policy statement may not provide clear guidance to 
every creditor or advertiser under order. The staff of the Division of 
Enforcement, Bureau of Consumer Protection, will respond to written 
requests for clarification of any order affected by this policy 
statement.

[60 FR 42033, Aug. 15, 1995]



PART 16_ADVISORY COMMITTEE MANAGEMENT--Table of Contents




Sec.
16.1 Purpose and scope.
16.2 Definitions.
16.3 Policy.
16.4 Advisory Committee Management Officer.
16.5 Establishment of advisory committees.
16.6 Charter.
16.7 Meetings.
16.8 Closed meetings.
16.9 Notice of meetings.
16.10 Minutes and transcripts of meetings.
16.11 Annual comprehensive review.
16.12 Termination of advisory committees.
16.13 Renewal of advisory committees.
16.14 Amendments.
16.15 Reports of advisory committees.
16.16 Compensation.

    Authority: Federal Advisory Committee Act, 5 U.S.C. App. I Section 
8(a).

    Source: 51 FR 30055, Aug. 22, 1986, unless otherwise noted.



Sec.  16.1  Purpose and scope.

    (a) The regulations in this part implement the Federal Advisory 
Committee Act, 5 U.S.C. App. I.
    (b) These regulations shall apply to any advisory committee, as 
defined in paragraph (b) of Sec.  16.2 of this part. However, to the 
extent that an advisory committee is subject to particular statutory 
provisions that are inconsistent with the Federal Advisory Committee 
Act, these regulations do not apply.



Sec.  16.2  Definitions.

    For purposes of this part:
    (a) Administrator means the Administrator of the General Services 
Administration.
    (b) Advisory committee, subject to exclusions described in paragraph 
(b)(2) of this section, means any committee, board, commission, council, 
panel, task force, or other similar group, or any subcommittee or other 
subgroup thereof, which is established or utilized by the Commission for 
the purpose of obtaining advice or recommendations for the Commission or 
other agency or officer of the Federal Government on

[[Page 130]]

matters that are within the scope of the Commission's jurisdiction.
    (1) Where a group provides some advice to the Commission but the 
group's advisory function is incidental and inseparable from other 
(e.g., operational or management) functions, the provisions of this part 
do not apply. However, if the advisory function is separable, the group 
is subject to this part to the extent that the group operates as an 
advisory committee.
    (2) Groups excluded from the effect of the provisions of this part 
include:
    (i) Any committee composed wholly of full-time officers or employees 
of the Federal Government;
    (ii) Any committee, subcommittee or subgroup that is exclusively 
operational in nature (e.g., has functions that include making or 
implementing decisions, as opposed to the offering of advice or 
recommendations);
    (iii) Any inter-agency advisory committee unless specifically made 
applicable by the establishing authority.
    (c) Commission means the Federal Trade Commission.
    (d) GSA means the General Services Administration.
    (e) Secretariat means the Committee Management Secretariat of the 
General Services Administration.
    (f) Sunshine Act means the Government in the Sunshine Act, 5 U.S.C. 
552b.



Sec.  16.3  Policy.

    (a) The Commission's policy shall be to:
    (1) Establish an advisory committee only when it is essential to the 
conduct of agency business;
    (2) Insure that adequate information is provided to the Congress and 
the public regarding advisory committees, and that there are adequate 
opportunities for access by the public to advisory committee meetings;
    (3) Insure that the membership of the advisory committee is balanced 
in terms of the points of view represented and the functions to be 
performed; and
    (4) Terminate an advisory committee whenever the stated objectives 
of the committee have been accomplished; the subject matter or work of 
the advisory committee has become obsolete; the cost of operating the 
advisory committee is excessive in relation to the benefits accruing to 
the Commission; or the advisory committee is otherwise no longer a 
necessary or appropriate means to carry out the purposes for which it 
was established.
    (b) No advisory committee may be used for functions that are not 
solely advisory unless specifically authorized to do so by law. The 
Commission shall be solely responsible for making policy decisions and 
determining action to be taken with respect to any matter considered by 
an advisory committee.



Sec.  16.4  Advisory Committee Management Officer.

    (a) The Commission shall designate the Executive Director as the 
Advisory Committee Management Officer who shall:
    (1) Exercise control and supervision over the establishment, 
procedures, and accomplishments of the advisory committees established 
by the Commission;
    (2) Assemble and maintain the reports, records, and other papers of 
any advisory committee during its existence;
    (3) Carry out, on behalf of the Commission, the provisions of the 
Freedom of Information Act, 5 U.S.C. 552, with respect to such reports, 
records, and other papers;
    (4) Maintain in a single location a complete set for the charters 
and membership lists of each of the Commission's advisory committees;
    (5) Maintain information on the nature, functions, and operations of 
each of the Commission's advisory committees; and
    (6) Provide information on how to obtain copies of minutes of 
meetings and reports of each of the Commission's advisory committees.
    (b) The name of the Advisory Committee Management Officer designated 
in accordance with this part, and his or her agency address and 
telephone number, shall be provided to the Secretariat.



Sec.  16.5  Establishment of advisory committees.

    (a) No advisory committee shall be established under this part 
unless such establishment is:

[[Page 131]]

    (1) Specifically authorized by statute; or
    (2) Determined as a matter of formal record by the Commission, after 
consultation with the Administrator, to be in the public interest in 
connection with the performance of duties imposed on the Commission by 
law.
    (b) In establishing an advisory committee, the Commission shall:
    (1) Prepare a proposed charter for the advisory committee in 
accordance with Sec.  16.6 of this part; and
    (2) Submit an original and one copy of a letter to the Administrator 
requesting concurrence in the Commission's proposal to establish an 
advisory committee. The letter from the Commission shall describe the 
nature and purpose of the proposed advisory committee, including an 
explanation of why establishment of the advisory committee is essential 
to the conduct of agency business and in the public interest and why the 
functions of the proposed committee could not be performed by the 
Commission, by an existing committee, or through other means. The letter 
shall also describe the Commission's plan to attain balanced membership 
on the proposed advisory committee in terms of points of view to be 
represented and functions to be performed. The letter shall be 
accompanied by two copies of the proposed charter.
    (c) Upon the receipt of notification from the Administrator of his 
or her concurrence or nonconcurrence, the Commission shall notify the 
Administrator in writing that either:
    (1) The advisory committee is being established. The filing of an 
advisory committee charter as specified in Sec.  16.6 of this part shall 
be deemed appropriate written notification in this instance; or
    (2) The advisory committee is not being established.
    (d) If the Commission determines that an advisory committee should 
be established in accordance with paragraph (c) of this section, the 
Commission shall publish notice to that effect in the Federal Register 
at least fifteen days prior to the filing of the advisory committee's 
charter unless the Administrator authorizes publication of such notice 
within a shorter period of time. The notice shall identify the name and 
purpose of the advisory committee, state that the committee is necessary 
and in the public interest, and identify the name and address of the 
Commission official to whom the public may submit comments.
    (e) The Commission may issue regulations or guidelines as may be 
necessary to operate and oversee a particular advisory committee.



Sec.  16.6  Charter.

    (a) No advisory committee established, utilized, reestablished or 
renewed by the Commission under this part shall meet or take any action 
until its charter has been filed by the Commission with the standing 
committees of the Senate and House of Representatives having legislative 
jurisdiction over the Commission.
    (b) The charter required by paragraph (a) of this section shall 
include the following information:
    (1) The committee's official designation;
    (2) The committee's objectives and the scope of its activity;
    (3) The period of time necessary for the committee to carry out its 
purposes;
    (4) The Commission component or official to whom the committee 
reports;
    (5) The agency or official responsible for providing the necessary 
support for the committee;
    (6) A description of the duties for which the committee is 
responsible, and, if such duties are not solely advisory, a 
specification of the authority for such functions;
    (7) The estimated annual operating cost in dollars and man-years for 
the committee;
    (8) The estimated number and frequency of committee meetings;
    (9) The committee's termination date, if less than two years from 
the date of committee's establishment; and
    (10) The date the charter is filed.
    (c) A copy of the charter required by paragraph (a) of this section 
shall also be furnished at the time of filing to the Secretariat and the 
Library of Congress.
    (d) The requirements of this section shall also apply to committees 
utilized as advisory committees, even though

[[Page 132]]

not expressly established for that purpose.



Sec.  16.7  Meetings.

    (a) The Commission shall designate an officer or employee of the 
Federal Government as the Designated Federal Officer for the advisory 
committee. The Designated Federal Officer shall attend the meetings of 
the advisory committee, and shall adjourn committee meetings whenever he 
or she determines that adjournment is in the public interest. The 
Commission, in its discretion, may authorize the Designated Federal 
Officer to chair meetings of the advisory committee.
    (b) No meeting of any advisory committee shall be held except at the 
call of, or with the advance approval of, the Designated Federal Officer 
and with an agenda approved by such official.
    (c) The agenda required by paragraph (b) of this section shall 
identify, in general terms, matters to be considered at the meeting and 
shall indicate whether any part of the meeting will concern matters that 
the General Counsel has determined to be covered by one or more of the 
exemptions of the Sunshine Act.
    (d) Timely notice of each meeting of the advisory committee shall be 
provided in accordance with Sec.  16.9 of this part.
    (e) Subject to the provisions of Sec.  16.8 of this part, each 
meeting of an advisory committee as defined in Sec.  16.2(b) of this 
part shall be open to the public. Subcommittees and subgroups that are 
not utilized by the Commission for the purpose of obtaining advice or 
recommendations do not constitute advisory committees within the meaning 
of Sec.  16.2(b) and are not subject to the meeting and other 
requirements of this part.
    (f) Meetings that are completely or partly open to the public shall 
be held at reasonable times and at places that are reasonably accessible 
to members of the public. The size of the meeting room shall be 
sufficient to accommodate members of the public who can reasonably be 
expected to attend.
    (g) Any member of the public shall be permitted to file a written 
statement with the committee concerning any matter to be considered in a 
meeting. Interested persons may be permitted by the committee chairman 
to speak at such meetings in accordance with procedures established by 
the committee and subject to the time constraints under which the 
meeting is to be conducted.
    (h) No meeting of any advisory committee shall be held in the 
absence of a quorum. Unless otherwise established by statute or in the 
charter of the committee, a quorum shall consist of a majority of the 
committee's authorized membership.



Sec.  16.8  Closed meetings.

    (a) Paragraphs (e), (f), and (g) of Sec.  16.7 of this part, which 
require that meetings shall be open to the public and that the public 
shall be afforded an opportunity to participate in such meetings, shall 
not apply to any advisory committee meeting (or any portion thereof) 
which the Commission determines is concerned with any matter covered by 
one or more of the exemptions set forth in paragraph (c) of the Sunshine 
Act, 5 U.S.C. section 552b(c).
    (b) An advisory committee that seeks to have all or part of its 
meeting closed shall notify the Commission at least thirty days before 
the scheduled date of the meeting. The notification shall be in writing 
and shall identify the specific provisions of the Sunshine Act which 
justify closure. The Commission may waive the thirty-day requirement 
when a lesser period of time is requested and justified by the advisory 
committee.
    (c) The General Counsel shall review all requests to close meetings 
and shall advise the Commission on the disposition of each such request.
    (d) If the Commission determines that the request is consistent with 
the policies of the Sunshine Act and the Federal Advisory Committee Act, 
it shall issue a determination that all or part of the meeting may be 
closed. A copy of the Commission's determination shall be made available 
to the public upon request.
    (e) The advisory committee shall issue, on an annual basis, a report 
that sets forth a summary of its activities in meetings closed pursuant 
to this section, addressing those related matters as would be 
informative to the

[[Page 133]]

public and consistent with the policy of the Sunshine Act and of this 
part. Notice of the availability of such annual reports shall be 
published in accordance with Sec.  16.15 of this part.



Sec.  16.9  Notice of meetings.

    (a) Notice of each advisory committee meeting, whether open or 
closed to the public, shall be published in the Federal Register at 
least 15 days before the meeting date. Such notice shall include the 
exact name of the advisory committee as chartered; the time, date, place 
and purpose of the meeting; and a summary of the meeting agenda. Notice 
shall also state that the meeting is open to the public or closed in 
whole or in part, and, if closed, cite the specific exemptions of the 
Sunshine Act as the basis for closure. The Commission may permit the 
advisory committee to provide notice of less than fifteen days in 
extraordinary situations, provided that the reasons for doing so are 
included in the meeting notice.
    (b) In addition to the notice required by paragraph (a) of this 
section, other forms of notice such as press releases and notices in 
professional journals may be used to inform interested members of the 
public of advisory committee meetings.



Sec.  16.10  Minutes and transcripts of meetings.

    (a) Detailed minutes of each advisory committee meeting shall be 
kept. The minutes shall reflect the time, date and place of the meeting; 
and accurate summary of each matter that was discussed and each 
conclusion reached; and a copy of each report or other document 
received, issued, or approved by the advisory committee. In addition, 
the minutes shall include a list of advisory committee members and staff 
and full-time Federal employees who attended the meeting; a list of 
members of the public who presented oral or written statements; and an 
estimated number of members of the public who were present at the 
meeting. The minutes shall describe the extent to which the meeting was 
open to the public and the nature and extent of any public 
participation. If it is impracticable to attach to the minutes of the 
meeting any document received, issued, or approved by the advisory 
committee, then the minutes shall describe the document in sufficient 
detail to enable any person who may request the document to identify it 
readily.
    (b) The accuracy of all minutes shall be certified to by the 
chairperson of the advisory committee.
    (c) Minutes need not be kept if a verbatim transcript is made.



Sec.  16.11  Annual comprehensive review.

    (a) The Commission shall conduct an annual comprehensive review of 
the activities and responsibilities of each advisory committee to 
determine:
    (1) Whether such committee is carrying out its purpose;
    (2) Whether, consistent with the provisions of applicable statutes, 
the responsibilities assigned to it should be revised;
    (3) Whether it should be merged with any other advisory committee or 
committees; or
    (4) Whether it should be abolished.
    (b) Pertinent factors to be considered in the comprehensive review 
required by paragraph (a) of this section include the following:
    (1) The number of times the committee has met in the past year;
    (2) The number of reports or recommendations submitted by the 
committee;
    (3) An evaluation of the substance of the committee's reports or 
recommendations with respect to the Commission's programs or operations;
    (4) An evaluation (with emphasis on the preceding twelve month 
period of the committee's work) of the history of the Commission's 
utilization of the committee's recommendations in policy formulation, 
program planning, decision making, more effective achievement of program 
objectives, and more economical accomplishment of programs in general.
    (5) Whether information or recommendations could be obtained from 
sources within the Commission or from another advisory committee already 
in existence;
    (6) The degree of duplication of effort by the committee as compared 
with that of other parts of the Commission or other advisory committees; 
and

[[Page 134]]

    (7) The estimated annual cost of the committee.
    (c) The annual review required by this section shall be conducted on 
a fiscal year basis, and results of the review shall be included in the 
annual report to the GSA required by Sec.  16.15 of this part. The 
report shall contain a justification of each advisory committee which 
the Commission determines should be continued, making reference, as 
appropriate, to the factors specified in paragraph (b) of this section.



Sec.  16.12  Termination of advisory committees.

    Any advisory committee shall automatically terminate not later than 
two years after it is established, reestablished, or renewed, unless:
    (a) Its duration is otherwise provided by law;
    (b) It is renewed in accordance with Sec.  16.13 of this part; or
    (c) The Commission terminates it before that time.



Sec.  16.13  Renewal of advisory committees.

    (a) Any advisory committee established under this part may be 
renewed by appropriate action of the Commission and the filing of a new 
charter. An advisory committee may be continued by such action for 
successive two-year periods.
    (b) Before it renews an advisory committee in accordance with 
paragraph (a) of this section, the Commission will inform the 
Administrator by letter, not more than sixty days nor less than thirty 
days before the committee expires, of the following:
    (1) Its determination that a renewal is necessary and in the public 
interest;
    (2) The reasons for its determination;
    (3) The Commission's plan to maintain balanced membership on the 
committee;
    (4) An explanation of why the committee's functions cannot be 
performed by the Commission or by an existing advisory committee.
    (c) Upon receipt of the Administrator's notification of concurrence 
or nonconcurrence, the Commission shall publish a notice of the renewal 
in the Federal Register, which shall certify that the renewal of the 
advisory committee is in the public interest and shall include all the 
matters set forth in paragraph (b) of this section. The Commission shall 
cause a new charter to be prepared and filed in accordance with the 
provisions of Sec. Sec.  16.5 and 16.6 of this part.
    (d) No advisory committee that is required under this section to 
file a new charter for the purpose of renewal shall take any action, 
other than preparation and filing of such charter, between the date the 
new charter is required and the date on which such charter is actually 
filed.



Sec.  16.14  Amendments.

    (a) The charter of an advisory committee may be amended when the 
Commission determines that the existing charter no longer accurately 
describes the committee itself or its goals or procedures. Changes may 
be minor, such as revising the name of the advisory committee, or may be 
major, to the extent that they deal with the basic objectives or 
composition of the committee.
    (1) To make a minor amendment to an advisory committee charter, the 
Commission shall:
    (i) Amend the charter language as necessary; and
    (ii) File the amended charter in accordance with the provisions of 
Sec.  16.6 of this part.
    (2) To make a major amendment to an advisory committee charter, the 
Commission shall:
    (i) Amend the charter language as necessary;
    (ii) Submit the proposed amended charter with a letter to the 
Administrator requesting concurrence in the amended language and an 
explanation of why the changes are essential and in the public interest; 
and
    (iii) File the amended charter in accordance with the provisions of 
Sec.  16.6 of this part.
    (b) Amendment of an existing charter does not constitute renewal of 
the advisory committee under Sec.  16.13 of this part.

[[Page 135]]



Sec.  16.15  Reports of advisory committees.

    (a) The Commission shall furnish, on a fiscal year basis, a report 
of the activities of each of its advisory committees to the GSA.
    (b) Results of the annual comprehensive review of the advisory 
committee made under Sec.  16.11 shall be included in the annual report.
    (c) The Commission shall notify the GSA, by letter, of the 
termination of, changes in the membership of, or other significant 
developments with respect to, an advisory committee.



Sec.  16.16  Compensation.

    (a) Committee members. Unless otherwise provided by law, the 
Commission shall not compensate advisory committee members for their 
service on an advisory committee. In the exceptional case where the 
Commission is unable to meet the need for technical expertise or the 
requirement for balanced membership solely through the appointment of 
noncompensated members, the Commission may contract for or authorize the 
advisory committee to contract for the services of a specific consultant 
who may be appointed as a member of the advisory committee. In such a 
case, the Commission shall follow the procedures set forth in paragraph 
(b) of this section.
    (b) Consultants. Prior to hiring or authorizing the advisory 
committee to hire a consultant to an advisory committee, the Commission 
shall determine that the expertise or viewpoint to be offered by the 
consultant is not otherwise available without cost to the Commission. 
The compensation to be paid to such consultant may not exceed the 
maximum rate of pay authorized by 5 U.S.C. section 3109. Hiring of 
consultants shall be in accordance with OMB Circular A-120 and 
applicable statutes, regulations, and Executive Orders.
    (c) Staff members. The Commission may fix the pay of each advisory 
committee staff member at a rate of the General Schedule, General 
Management Schedule, or Senior Executive Service in which the Staff 
member's position would appropriately be placed (5 U.S.C. chapter 51). 
The Commission may not fix the pay of a staff member at a rate higher 
than the daily equivalent of the maximum rate for GS-15, unless the 
Commission has determined that under the General Schedule, General 
Management Schedule, or Senior Executive Service classification system, 
the staff member's position would appropriately be placed at a grade 
higher than GS-15. The Commission shall review this determination 
annually.

[[Page 136]]



              SUBCHAPTER B_GUIDES AND TRADE PRACTICE RULES





PART 17_APPLICATION OF GUIDES IN PREVENTING UNLAWFUL PRACTICES--Table of Contents




    Note: Industry guides are administrative interpretations of laws 
administered by the Commission for the guidance of the public in 
conducting its affairs in conformity with legal requirements. They 
provide the basis for voluntary and simultaneous abandonment of unlawful 
practices by members of industry. Failure to comply with the guides may 
result in corrective action by the commission under applicable statutory 
provisions. Guides may relate to a practice common to many industries or 
to specific practices of a particular industry.

    (Authority: Sec. 6(g), 38 Stat. 722; (15 U.S.C. 46(g))

[44 FR 11176, Feb. 27, 1979]



PART 18_GUIDES FOR THE NURSERY INDUSTRY--Table of Contents




Sec.
18.0 Definitions.
18.1 Deception (general).
18.2 Deception through use of names.
18.3 Substitution of products.
18.4 Size and grade designations.
18.5 Deception as to blooming, fruiting, or growing ability.
18.6 Plants collected from the wild state.
18.7 Misrepresentation as to character of business.
18.8 Deception as to origin or source of industry products.

    Authority: Secs. 5, 6 FTC Act; 38 Stat. 719, 721; 15 U.S.C. 45, 46.

    Source: 44 FR 11177, Feb. 27, 1979, unless otherwise noted.



Sec.  18.0  Definitions.

    Industry products. As used in this part, the term industry products 
includes all types of trees, small fruit plants, shrubs, vines, 
ornamentals, herbaceous annuals, biennials and perennials, bulbs, corms, 
rhizomes, and tubers which are offered for sale or sold to the general 
public. Included are products propagated sexually or asexually and 
whether grown in a commercial nursery or collected from the wild state. 
Such products are customarily used for outdoor planting. Not included 
are florists' or greenhouse plants solely for inside culture or use and 
annual vegetable plants.
    Industry members. Any person, firm, corporation, or organization 
engaged in the sale, offering for sale, or distribution in commerce of 
industry products, as defined above.
    Lining-out stock. Includes all plant material coming from 
propagating houses, beds, or frames, and young material such as 
seedlings rooted or unrooted cuttings, grafts or layers, of suitable 
size to transplant either in the nursery row or in containers for 
``growing on.''
    Nursery-propagated. Reproduced and grown under cultivation, 
including reproduced and grown under cultivation from plants, seeds or 
cuttings lawfully collected from the wild state.
    Propagated. Reproduced from seeds, cuttings, callus or other plant 
tissue, spores or other propagules under a controlled environment that 
is intensely manipulated by human intervention for the purpose of 
producing selected species or hybrids.

[44 FR 11177, Feb. 27, 1979, as amended at 59 FR 64549, Dec. 14, 1994]



Sec.  18.1  Deception (general).

    (a) It is an unfair or deceptive act or practice to sell, offer for 
sale, or distribute industry products by any method or under any 
circumstance or condition that misrepresents directly or by implication 
to purchasers or prospective purchasers the products with respect to 
quantity, size, grade, kind, species, age, maturity, condition, vigor, 
hardiness, number of times transplanted, growth ability, growth 
characteristics, rate of growth or time required before flowering or 
fruiting, price, origin or place where grown, or any other material 
aspect of the industry product.
    (b) The inhibitions of this section shall apply to every type of 
advertisement or method of representation, whether in newspaper, 
periodical, sales catalog, circular, by tag, label or insignia, by radio 
or television, by sales representatives, or otherwise.

[[Page 137]]

    (c) Among practices inhibited by the foregoing are direct or 
indirect representations:
    (1) That plants have been propagated by grafting or bud selection 
methods, when such is not the fact.
    (2) That industry products are healthy, will grow anywhere without 
the use of fertilizer, or will survive and produce without special care, 
when such is not the fact.
    (3) That plants will bloom the year round, or will bear an 
extraordinary number of blooms of unusual size or quality, when such is 
not the fact.
    (4) That an industry product is a new variety, when in fact it is a 
standard variety to which the industry member has given a new name.
    (5) That an industry product cannot be purchased through usual 
retail outlets, or that there are limited stocks available, when such is 
not the fact.
    (6) That industry products offered for sale will be delivered in 
time for the next (or any specified) seasonal planting when the industry 
member is aware of factors which make such delivery improbable.
    (7) That the appearance of an industry product as to size, color, 
contour, foliage, bloom, fruit or other physical characteristic is 
normal or usual when the appearance so represented is in fact abnormal 
or unusual.
    (8) That the root system of any plant is larger in depth or diameter 
than that which actually exists, whether accomplished by excessive 
packaging material, or excessive balling, or other deceptive or 
misleading practice.
    (9) That bublets are bulbs.
    (10) That an industry product is a rare or unusual item when such is 
not the fact. [Guide 1]

[44 FR 11177, Feb. 27, 1979, as amended at 59 FR 64549, Dec. 14, 1994]



Sec.  18.2  Deception through use of names.

    (a) In the sale, offering for sale, or distribution of an industry 
product, it is an unfair or deceptive act or practice for any industry 
member to use a name for such product that misrepresents directly or by 
implication to purchasers or prospective purchasers its true identity.
    (b) Subject to the foregoing:
    (1) When an industry product has a generally recognized and well-
established common name, it is proper to use such name as a designation 
therefor, either alone or in conjunction with the correct botanical name 
of the product.
    (2) When an industry product has a generally recognized and well-
established common name, it is an unfair or deceptive act or practice 
for an industry member to adopt and use a new name for the product 
unless such new name is immediately accompanied by the generally 
recognized and well-established common name, or by the correct botanical 
name, or by a description of the nature and properties of the product 
which is of sufficient detail to prevent confusion and deception of 
purchasers or prospective purchasers as to the true identity of the 
product.
    (3) When an industry product does not have a generally recognized 
and well-established common name, and a name other than the correct 
botanical name of the product is applied thereto, such other name shall 
be immediately accompanied by either the correct botanical name of the 
product, or a description of the nature and properties of the product 
which is of sufficient detail as to prevent confusion and deception of 
purchasers and prospective purchasers as to the true identity of the 
product.

    Note: Industry recommendation. The industry recommends that in 
administering the guide in this section the Commission give 
consideration to the use of plant names listed in such works as 
Checklist of Woody Ornamental Plants of California, 1977, University of 
California; Hillier's Manual of Trees and Shrubs, 1971, Hillier & Sons; 
Manual of Cultivated Conifers, 1965, P. Den Ouden & B. K. Boom; Hortus 
III, 1976, L. H. Bailey Hortorium; Naming and Registering New Cultivars, 
1974, American Association of Nurserymen, Inc.; and to plant name lists 
periodically published by the plant societies and the horticultural 
organizations selected as international and national cultivar 
registration authorities as enumerated in Appendix of Naming and 
Registering New Cultivars.


[Guide 2]

[44 FR 11177, Feb. 27, 1979, as amended at 59 FR 64549, Dec. 14, 1994]

[[Page 138]]



Sec.  18.3  Substitution of products.

    With respect to industry products offered for sale by an industry 
member, it is an unfair or deceptive act or practice for any member of 
the industry:
    (a) To ship or deliver industry products which do not conform to 
representations made prior to securing the order or to specifications 
upon which the sale is consummated, without advising the purchaser of 
the substitution and obtaining the purchaser's consent thereto prior to 
making shipment or delivery, where failure to advise would be misleading 
to purchasers; or
    (b) To falsely represent the reason for making a substitution: 
Provided, however, That nothing in this section is intended to inhibit 
the shipment of products different from those ordered, prior to 
obtaining the purchaser's consent to such substitution, when the order 
is received by the industry member near the close of the planting season 
for the products ordered and the substitution involved relates but to a 
product or products the total price of which is comparatively small, and 
when:
    (1) At the commencement of the planting season for the products 
ordered the industry member had a supply of such products sufficient to 
meet normal and reasonably expected orders therefor, and such supply has 
been exhausted; and
    (2) The products substituted are of similar variety and of equal or 
greater value to those ordered by the purchaser and no additional charge 
is made therefor; and
    (3) Notice of the substitution, with adequate identification of the 
substituted item or items, and with commitment of the industry member to 
refund any purchase price received for the substituted products if such 
products are not acceptable to the purchaser and to compensate the 
purchaser for any expense involved in the return of the substituted 
products if refund is conditioned on the return thereof, is given the 
purchaser at the time of his receipt of such products: And provided 
further, That nothing in this section is to be construed as sanctioning 
the dissemination of an advertisement of an industry product or products 
or the personal solicitation of orders therefor unless at the time of 
such dissemination or solicitation the industry member has a supply of 
such product or products sufficient to meet normal and reasonably 
expected orders therefor. [Guide 3]

[44 FR 11177, Feb. 27, 1979, as amended at 59 FR 64549, Dec. 14, 1994]



Sec.  18.4  Size and grade designations.

    (a) In the sale, offering for sale, or distribution of industry 
products, it is an unfair or deceptive act or practice for an industry 
member to use any term, designation, number, letter, mark, or symbol as 
a size or grade designation for any industry product in a manner or 
under any circumstance that misrepresents directly or by implication to 
purchasers or prospective purchasers the actual size or grade of such 
products.
    (b) Under this section industry members offering lining-out stock 
for sale shall specify conspicuously and accurately the size and age of 
such stock when failure to do so may misrepresent directly or by 
implication such stock to purchasers or prospective purchasers.
    (c) Nothing in this section is to be construed as inhibiting the 
designation of the size or grade of an industry product by use of a size 
or grade designation for which a standard has been established which is 
generally recognized in the industry when the identity of such standard 
is conjunctively disclosed, the product qualifies for the designation 
under such standard, and no deception of purchasers or prospective 
purchasers results in the use of such designation.

    Note: It is the consensus of the industry that the grade and size 
standard set forth in the current edition of American Standard for 
Nursery Stock, ANSI Z60.1, as approved by the American National Standard 
Institute, Inc., is generally recognized in the industry, and that use 
of the size and grade designation therein set forth, in accordance with 
the requirements of the standard for the designations, in the marketing 
of industry products to which such standard relates, will prevent 
deception and confusion of purchasers and prospective purchasers of such 
products. [Guide 4]

[44 FR 11177, Feb. 27, 1979, as amended at 59 FR 64549, Dec. 14, 1994]

[[Page 139]]



Sec.  18.5  Deception as to blooming, fruiting, or growing ability.

    In the sale, offering for sale, or distribution of industry 
products, it is an unfair or deceptive act or practice for any industry 
member to misrepresent directly or by implication to purchasers or 
prospective purchasers the ability of such products:
    (a) To bloom, flower, or fruit within a specified period of time; or
    (b) To produce crops within a specified period of time, or to give 
multiple crops each year, or to produce crops in unfavorable climatic 
regions; or
    (c) To bear fruit through self-pollinization; or
    (d) To grow, flourish, and survive irrespective of the climatic 
conditions, the care exercised in or after planting, or the soil 
characteristics of the locality in which they are to be planted.

    Note 1: Under this section, when flower bulbs are of such immaturity 
as not reasonably to be expected to bloom and flower the first season of 
their planting, such fact shall be clearly and conspicuously disclosed 
in all advertisements and sales promotional literature relating to such 
products: Provided, however, That such disclosure need not be made when 
sales are confined to nurseries and commercial growers for their use as 
planting stock.
    Note 2: Under this section, in order to avoid deception of 
purchasers and prospective purchasers thereof, when rose bushes have 
been used in a greenhouse for the commercial production of cut flowers, 
they shall be tagged or labeled so as to clearly, adequately and 
conspicuously disclose such fact, and such tags and labels shall be so 
attached thereto as to remain thereon until consummation of consumer 
sale. A similar disclosure shall be made in all advertising and sales 
promotional literature relating to such products. And when, by reason of 
such previous greenhouse use or their condition at the time of removal 
therefrom or their handling during or subsequent thereto, there is 
probability that such rose bushes will not satisfactorily thrive and 
produce flowers when replanted outdoors, or will satisfactorily thrive 
and produce flowers outdoors only if given special treatment and 
attention during and after their replanting, such fact shall also be 
clearly, conspicuously, and nondeceptively disclosed in close 
conjunction with, and in the same manner as, the aforesaid required 
disclosure that such products have been used in a greenhouse for the 
commercial production of cut flowers.


[Guide 5]

[44 FR 11177, Feb. 27, 1979, as amended at 59 FR 64549, Dec. 14, 1994]



Sec.  18.6  Plants collected from the wild state.

    It is an unfair or deceptive act or practice to sell, offer for 
sale, or distribute industry products collected from the wild state 
without disclosing that they were collected from the wild state; 
provided, however, that plants propagated in nurseries from plants 
lawfully collected from the wild state may be designated as ``nursery-
propagated.'' [Guide 6]

[59 FR 64549, Dec. 14, 1994]



Sec.  18.7  Misrepresentation as to character of business.

    (a) In the sale, offering for sale, or distribution of industry 
products, it is an unfair or deceptive act or practice for any industry 
member to represent itself directly or by implication to be a grower or 
propagator of such products, or any portion thereof, or to have any 
other experience or qualification either relating to the growing or 
propagation of such products or enabling the industry member to be of 
assistance to purchasers or prospective purchasers in the selection by 
them of the kinds or types of products, or the placement thereof, when 
such is not the fact, or in any other manner to misrepresent directly or 
by implication the character, nature, or extent of the industry member's 
business.

    Note: Among practices subject to the inhibitions of this section is 
a representation by an industry member to the effect that he is a 
landscape architect when his training, experience, and knowledge do not 
qualify him for such representation.

    (b) It is also an unfair or deceptive act or practice for an 
industry member to use the word ``guild,'' ``club,'' ``association,'' 
``council,'' ``society,'' ``foundation,'' or any other word of similar 
import or meaning, as part of a trade name, or otherwise, in such a 
manner or under such circumstances as to indicate or imply that its 
business is other than a commercial enterprise operated for profit, 
unless such be true in fact,

[[Page 140]]

or so as to deceive purchasers or prospective purchasers in any other 
material respect. [Guide 7]

[59 FR 64549, Dec. 14, 1994]



Sec.  18.8  Deception as to origin or source of industry products.

    (a) It is an unfair or deceptive act or practice to sell, offer for 
sale, or advertise an industry product by misrepresenting directly or by 
implication the origin or source of such product to purchasers or 
prospective purchasers (e.g., by use of the term Holland to describe 
bulbs grown in the U.S.A.); provided, however, that when a plant has an 
accepted common name that incorporates a geographical term and such term 
has lost its geographical significance as so used, the mere use of such 
common names does not constitute a misrepresentation as to source or 
origin (e.g., ``Colorado Blue Spruce,'' ``Arizona Cypress,'' ``Black 
Hills Spruce,'' ``California Privet,'' ``Japanese Barberry,'' etc.).
    (b) It is also an unfair or deceptive act or practice to advertise, 
sell, or offer for sale an industry product of foreign origin without 
adequate and non-deceptive disclosure of the name of the foreign country 
from which it came, where the failure to make such disclosure would be 
misleading to purchasers or prospective purchasers. [Guide 8]

[59 FR 64550, Dec. 14, 1994]



PART 20_GUIDES FOR THE REBUILT, RECONDITIONED AND OTHER USED 
AUTOMOBILE PARTS INDUSTRY--Table of Contents




Sec.
20.0 Scope and purpose of the guides.
20.1 Deception generally.
20.2 Deception as to identity of rebuilder, remanufacturer, 
          reconditioner or reliner.
20.3 Misrepresentation of the terms ``rebuilt,'' ``factory rebuilt,'' 
          ``remanufactured,'' etc.

    Authority: 15 U.S.C. 41-58.

    Source: 44 FR 11182, Feb. 27, 1979, unless otherwise noted.



Sec.  20.0  Scope and purpose of the guides.

    The Guides in this part apply to the manufacture, sale, 
distribution, marketing and advertising (including advertising in 
electronic format, such as on the Internet) of used parts and assemblies 
containing used parts designed for use in automobiles, trucks, 
motorcycles, tractors, or similar self-propelled vehicles whether or not 
such parts or assemblies have been reconstructed in any way (hereinafter 
``industry products''). Such automotive parts and assemblies include, 
but are not limited to, anti-lock brake systems, air conditioners, 
alternators, armatures, air brakes, brake cylinders, ball bearings, 
brake shoes, heavy duty vacuum brakes, calipers, carburetors, cruise 
controls, cylinder heads, clutches, crankshafts, constant velocity 
joints, differentials, drive shafts, distributors, electronic control 
modules, engines, fan clutches, fuel injectors, fuel pumps, front wheel 
drive axles, generators, master cylinders, oil pumps, power brake units, 
power steering gears, power steering pumps, power window motors, rack 
and pinion steering units, rotors, starter drives, speedometers, 
solenoids, smog pumps, starters, stators, throttle body injectors, 
torque convertors, transmissions, turbo chargers, voltage regulators, 
windshield wiper motors, and water pumps. Tires are not included. (Tires 
are covered by the Tire Advertising and Labeling Guides, 16 CFR Part 
228.)

[67 FR 9922, Mar. 5, 2002]



Sec.  20.1  Deception generally.

    (a) It is unfair or deceptive to represent, directly or by 
implication, that any industry product or part of an industry product is 
new or unused when such is not the fact, or to misrepresent the current 
condition, or extent of previous use, reconstruction or repair of any 
industry product.
    (b) It is unfair or deceptive to offer for sale or sell any industry 
product unless a clear and conspicuous disclosure that such product has 
been used or contains used parts is made in advertising, sales 
promotional literature and invoices and on product packaging. 
Additionally, it is unfair or deceptive to offer for sale or to sell any 
rebuilt, remanufactured, reconditioned, or otherwise new-appearing 
industry product unless such disclosure using appropriate descriptive 
terms is made on the

[[Page 141]]

product itself with sufficient permanency to remain visible for a 
reasonable period of time after installation. Examples of appropriate 
descriptive terms include, but are not limited to ``Used,'' 
``Secondhand,'' ``Repaired,'' ``Remanufactured,'' ``Reconditioned,'' 
``Rebuilt,'' or ``Relined.'' \1\ On invoices to the trade only, the 
disclosure may be made by use of any number, mark, or other symbol that 
is clearly understood by industry members as meaning that the products 
or parts identified on the invoices have been used.
---------------------------------------------------------------------------

    \1\ If the term ``recycled'' is used, it should be used in a manner 
consistent with the requirements for that term set forth in the Guides 
for the Use of Environmental Marketing Claims, 16 CFR 260.7(e).
---------------------------------------------------------------------------

    (c) It is unfair or deceptive to place any means or instrumentality 
in the hands of others so that they may mislead consumers as to the 
previous use of industry products or parts.

[67 FR 9922, Mar. 5, 2002]



Sec.  20.2  Deception as to identity of rebuilder, remanufacturer, 
reconditioner or reliner.

    (a) It is unfair or deceptive to misrepresent the identity of the 
rebuilder, remanufacturer, reconditioner or reliner of an industry 
product.
    (b) In connection with the sale or offering for sale of an industry 
product, if the identity of the original manufacturer of the product, or 
the identity of the manufacturer for which the product was originally 
made, is revealed and the product was rebuilt, remanufactured, 
reconditioned or relined by someone else, it is unfair or deceptive to 
fail to disclose such fact wherever the original manufacturer is 
identified in advertising and sales promotional literature concerning 
the product, on the container in which the product is packed, and on the 
product, in close conjunction with, and of the same permanency and 
conspicuousness as, the disclosure of previous use of the product 
described by this section. Examples of such disclosures include:
    (1) Disclosure of the identity of the rebuilder:

Rebuilt by John Doe Co.

    (2) Disclosure that the product was rebuilt by an independent 
rebuilder:

Rebuilt by an Independent Rebuilder.

    (3) Disclosure that the product was rebuilt by someone other than 
the manufacturer so identified:

Rebuilt by other than XYZ Motors.

    (4) Disclosure that the product was rebuilt for the identified 
manufacturer, if such is the case:

Rebuilt for XYZ Motors.

[67 FR 9922, Mar. 5, 2002]



Sec.  20.3  Misrepresentation of the terms ``rebuilt,'' ``factory rebuilt,'' 
``remanufactured,'' etc.

    (a) It is unfair or deceptive to use the words ``Rebuilt,'' 
``Remanufactured,'' or words of similar import, to describe an industry 
product which, since it was last subjected to any use, has not been 
dismantled and reconstructed as necessary, all of its internal and 
external parts cleaned and made rust and corrosion free, all impaired, 
defective or substantially worn parts restored to a sound condition or 
replaced with new, rebuilt (in accord with the provisions of this 
paragraph) or unimpaired used parts, all missing parts replaced with 
new, rebuilt or unimpaired used parts, and such rewinding or machining 
and other operations performed as are necessary to put the industry 
product in sound working condition.
    (b) It is unfair or deceptive to represent an industry product as 
``Factory Rebuilt'' unless the product was rebuilt as described in 
paragraph (a) of this section at a factory generally engaged in the 
rebuilding of such products. (See also Sec.  20.2.)

[67 FR 9922, Mar. 5, 2002]



PART 23_GUIDES FOR THE JEWELRY, PRECIOUS METALS, AND PEWTER INDUSTRIES--Table of Contents




Sec.
23.0 Scope and application.
23.1 Deception (general).
23.2 Misleading illustrations.
23.3 Misuse of the terms ``hand-made,'' ``hand-polished,'' etc.
23.4 Misrepresentation as to gold content.
23.5 Misuse of the word ``vermeil.''
23.6 Misrepresentation as to silver content.

[[Page 142]]

23.7 Misuse of the words ``platinum,'' ``iridium,'' ``palladium,'' 
          ``ruthenium,'' ``rhodium,'' and ``osmium.''
23.8 Misrepresentation as to content of pewter.
23.9 Additional guidance for the use of quality marks.
23.10 Misuse of ``corrosion proof,'' ``noncorrosive,'' ``corrosion 
          resistant,'' ``rust proof,'' ``rust resistant,'' etc.
23.11 Definition and misuse of the word ``diamond.''
23.12 Misuse of the words ``flawless,'' ``perfect,'' etc.
23.13 Disclosure of treatments to diamonds.
23.14 Misuse of the term ``blue white.''
23.15 Misuse of the term ``properly cut,'' etc.
23.16 Misuse of the words ``brilliant'' and ``full cut.''
23.17 Misrepresentation of weight and ``total weight.''
23.18 Definitions of various pearls.
23.19 Misuse of the word ``pearl.''
23.20 Misuse of terms such as ``cultured pearl,'' ``seed pearl,'' 
          ``Oriental pearl,'' ``natura,'' ``kultured,'' ``real,'' 
          ``gem,'' ``synthetic,'' and regional designations.
23.21 Misrepresentation as to cultured pearls.
23.22 Disclosure of treatment to gemstones.
23.23 Misuse of the words ``ruby,'' ``sapphire,'' ``emerald,'' 
          ``topaz,'' ``stone,'' ``birthstone,'' ``gemstone,'' etc.
23.24 Misuse of the words ``real,'' ``genuine,'' ``natural,'' 
          ``precious,'' etc.
23.25 Misuse of the word ``gem.''
23.26 Misuse of the words ``flawless,'' ``perfect,'' etc.

Appendix to Part 23--Exemptions Recognized in the Assay for Quality of 
          Gold Alloy, Gold Filled, Gold Overlay, Rolled Gold Plate, 
          Silver, and Platinum Industry Products

    Authority: Sec. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45.

    Source: 61 FR 27212, May 30, 1996, unless otherwise noted.



Sec.  23.0  Scope and application.

    (a) These guides apply to jewelry industry products, which include, 
but are not limited to, the following: gem stones and their laboratory-
created and imitation substitutes; natural and cultured pearls and their 
imitations; and metallic watch bands not permanently attached to 
watches. These guides also apply to articles, including optical frames, 
pens and pencils, flatware, and hollowware, fabricated from precious 
metals (gold, silver and platinum group metals), precious metal alloys, 
and their imitations. These guides also apply to all articles made from 
pewter. For the purposes of these guides, all articles covered by these 
guides are defined as ``industry products.''
    (b) These guides apply to persons, partnerships, or corporations, at 
every level of the trade (including but not limited to manufacturers, 
suppliers, and retailers) engaged in the business of offering for sale, 
selling, or distributing industry products.

    Note to paragraph (b):
    To prevent consumer deception, persons, partnerships, or 
corporations in the business of appraising, identifying, or grading 
industry products should utilize the terminology and standards set forth 
in the guides.

    (c) These guides apply to claims and representations about industry 
products included in labeling, advertising, promotional materials, and 
all other forms of marketing, whether asserted directly or by 
implication, through words, symbols, emblems, logos, illustrations, 
depictions, product brand names, or through any other means.

[61 FR 27212, May 30, 1996, as amended at 64 FR 33194, June 22, 1999]



Sec.  23.1  Deception (general).

    It is unfair or deceptive to misrepresent the type, kind, grade, 
quality, quantity, metallic content, size, weight, cut, color, 
character, treatment, substance, durability, serviceability, origin, 
price, value, preparation, production, manufacture, distribution, or any 
other material aspect of an industry product.

    Note 1 to Sec.  23.1: If, in the sale or offering for sale of an 
industry product, any representation is made as to the grade assigned 
the product, the identity of the grading system used should be 
disclosed.
    Note 2 to Sec.  23.1: To prevent deception, any qualifications or 
disclosures, such as those described in the guides, should be 
sufficiently clear and prominent. Clarity of language, relative type 
size and proximity to the claim being qualified, and an absence of 
contrary claims that could undercut effectiveness, will maximize the 
likelihood that the qualifications and disclosures are appropriately 
clear and prominent.



Sec.  23.2  Misleading illustrations.

    It is unfair or deceptive to use, as part of any advertisement, 
packaging

[[Page 143]]

material, label, or other sales promotion matter, any visual 
representation, picture, televised or computer image, illustration, 
diagram, or other depiction which, either alone or in conjunction with 
any accompanying words or phrases, misrepresents the type, kind, grade, 
quality, quantity, metallic content, size, weight, cut, color, 
character, treatment, substance, durability, serviceability, origin, 
preparation, production, manufacture, distribution, or any other 
material aspect of an industry product.

    Note to Sec.  23.2: An illustration or depiction of a diamond or 
other gemstone that portrays it in greater than its actual size may 
mislead consumers, unless a disclosure is made about the item's true 
size.



Sec.  23.3  Misuse of the terms ``hand-made,'' ``hand-polished,'' etc.

    (a) It is unfair or deceptive to represent, directly or by 
implication, that any industry product is hand-made or hand-wrought 
unless the entire shaping and forming of such product from raw materials 
and its finishing and decoration were accomplished by hand labor and 
manually-controlled methods which permit the maker to control and vary 
the construction, shape, design, and finish of each part of each 
individual product.

    Note to paragraph (a):
    As used herein, ``raw materials'' include bulk sheet, strip, wire, 
and similar items that have not been cut, shaped, or formed into jewelry 
parts, semi-finished parts, or blanks.

    (b) It is unfair or deceptive to represent, directly or by 
implication, that any industry product is hand-forged, hand-engraved, 
hand-finished, or hand-polished, or has been otherwise hand-processed, 
unless the operation described was accomplished by hand labor and 
manually-controlled methods which permit the maker to control and vary 
the type, amount, and effect of such operation on each part of each 
individual product.



Sec.  23.4  Misrepresentation as to gold content.

    (a) It is unfair or deceptive to misrepresent the presence of gold 
or gold alloy in an industry product, or the quantity or karat fineness 
of gold or gold alloy contained in the product, or the karat fineness, 
thickness, weight ratio, or manner of application of any gold or gold 
alloy plating, covering, or coating on any surface of an industry 
product or part thereof.
    (b) The following are examples of markings or descriptions that may 
be misleading: \2\
---------------------------------------------------------------------------

    \2\ See Sec.  23.4(c) for examples of acceptable markings and 
descriptions.
---------------------------------------------------------------------------

    (1) Use of the word ``Gold'' or any abbreviation, without 
qualification, to describe all or part of an industry product, which is 
not composed throughout of fine (24 karat) gold.
    (2) Use of the word ``Gold'' or any abbreviation to describe all or 
part of an industry product composed throughout of an alloy of gold, 
unless a correct designation of the karat fineness of the alloy 
immediately precedes the word ``Gold'' or its abbreviation, and such 
fineness designation is of at least equal conspicuousness.
    (3) Use of the word ``Gold'' or any abbreviation to describe all or 
part of an industry product that is not composed throughout of gold or a 
gold alloy, but is surface-plated or coated with gold alloy, unless the 
word ``Gold'' or its abbreviation is adequately qualified to indicate 
that the product or part is only surface-plated.
    (4) Use of the term ``Gold Plate,'' ``Gold Plated,'' or any 
abbreviation to describe all or part of an industry product unless such 
product or part contains a surface-plating of gold alloy, applied by any 
process, which is of such thickness and extent of surface coverage that 
reasonable durability is assured.
    (5) Use of the terms ``Gold Filled,'' ``Rolled Gold Plate,'' 
``Rolled Gold Plated,'' ``Gold Overlay,'' or any abbreviation to 
describe all or part of an industry product unless such product or part 
contains a surface-plating of gold alloy applied by a mechanical process 
and of such thickness and extent of surface coverage that reasonable 
durability is assured, and unless the term is immediately preceded by a 
correct designation of the karat fineness of the alloy that is of at 
least equal conspicuousness as the term used.
    (6) Use of the terms ``Gold Plate,'' ``Gold Plated,'' ``Gold 
Filled,'' ``Rolled

[[Page 144]]

Gold Plate,'' ``Rolled Gold Plated,'' ``Gold Overlay,'' or any 
abbreviation to describe a product in which the layer of gold plating 
has been covered with a base metal (such as nickel), which is covered 
with a thin wash of gold, unless there is a disclosure that the primary 
gold coating is covered with a base metal, which is gold washed.
    (7) Use of the term ``Gold Electroplate,'' ``Gold Electroplated,'' 
or any abbreviation to describe all or part of an industry product 
unless such product or part is electroplated with gold or a gold alloy 
and such electroplating is of such karat fineness, thickness, and extent 
of surface coverage that reasonable durability is assured.
    (8) Use of any name, terminology, or other term to misrepresent that 
an industry product is equal or superior to, or different than, a known 
and established type of industry product with reference to its gold 
content or method of manufacture.
    (9) Use of the word ``Gold'' or any abbreviation, or of a quality 
mark implying gold content (e.g., 9 karat), to describe all or part of 
an industry product that is composed throughout of an alloy of gold of 
less than 10 karat fineness.

    Note to paragraph (b) Sec.  23.4:
    The provisions regarding the use of the word ``Gold,'' or any 
abbreviation, as described above, are applicable to ``Duragold,'' 
``Diragold,'' ``Noblegold,'' ``Goldine,'' ``Layered Gold,'' or any words 
or terms of similar meaning.

    (c) The following are examples of markings and descriptions that are 
consistent with the principles described above:
    (1) An industry product or part thereof, composed throughout of an 
alloy of gold of not less than 10 karat fineness, may be marked and 
described as ``Gold'' when such word ``Gold,'' wherever appearing, is 
immediately preceded by a correct designation of the karat fineness of 
the alloy, and such karat designation is of equal conspicuousness as the 
word ``Gold'' (for example, ``14 Karat Gold,'' ``14 K. Gold,'' or ``14 
Kt. Gold''). Such product may also be marked and described by a 
designation of the karat fineness of the gold alloy unaccompanied by the 
word ``Gold'' (for example, ``14 Karat,'' ``14 Kt.,'' or ``14 K.'').

    Note to paragraph (c)(1):
    Use of the term ``Gold'' or any abbreviation to describe all or part 
of a product that is composed throughout of gold alloy, but contains a 
hollow center or interior, may mislead consumers, unless the fact that 
the product contains a hollow center is disclosed in immediate proximity 
to the term ``Gold'' or its abbreviation (for example, ``14 Karat Gold-
Hollow Center,'' or ``14 K. Gold Tubing,'' when of a gold alloy tubing 
of such karat fineness). Such products should not be marked or described 
as ``solid'' or as being solidly of gold or of a gold alloy. For 
example, when the composition of such a product is 14 karat gold alloy, 
it should not be described or marked as either ``14 Kt. Solid Gold'' or 
as ``Solid 14 Kt. Gold.''

    (2) An industry product or part thereof, on which there has been 
affixed on all significant surfaces, by any process, a coating, 
electroplating, or deposition by any means, of gold or gold alloy of not 
less than 10 karat fineness that is of substantial thickness, \3\ and 
the minimum thickness throughout of which is equivalent to one-half 
micron (or approximately 20 millionths of an inch) of fine gold, \4\ may 
be marked or described as ``Gold Plate'' or ``Gold Plated,'' or 
abbreviated, as, for example, G.P. The exact thickness of the plate may 
be marked on the item, if it is immediately followed by a designation of 
the karat fineness of the plating which is of equal conspicuousness as 
the term used (as, for example, ``2 microns 12 K. gold plate'' or 
``2[mu] 12 K. G.P.'' for an item plated with 2 microns of 12 karat 
gold.)
---------------------------------------------------------------------------

    \3\ The term substantial thickness means that all areas of the 
plating are of such thickness as to assure a durable coverage of the 
base metal to which it has been affixed. Since industry products include 
items having surfaces and parts of surfaces that are subject to 
different degrees of wear, the thickness of plating for all items or for 
different areas of the surface of individual items does not necessarily 
have to be uniform.
    \4\ A product containing 1 micron (otherwise known as 1[mu]) of 12 
karat gold is equivalent to one-half micron of 24 karat gold.

    Note paragraph (c)(2) to paragraph (b):
    If an industry product has a thicker coating or electroplating of 
gold or gold alloy on some areas than others, the minimum thickness of 
the plate should be marked.

    (3) An industry product or part thereof on which there has been 
affixed on all significant surfaces by soldering,

[[Page 145]]

brazing, welding, or other mechanical means, a plating of gold alloy of 
not less than 10 karat fineness and of substantial thickness \5\ may be 
marked or described as ``Gold Filled,'' ``Gold Overlay,'' ``Rolled Gold 
Plate,'' or an adequate abbreviation, when such plating constitutes at 
least \1/20\th of the weight of the metal in the entire article and when 
the term is immediately preceded by a designation of the karat fineness 
of the plating which is of equal conspicuousness as the term used (for 
example, ``14 Karat Gold Filled,'' ``14 Kt. Gold Filled,'' ``14 Kt. 
G.F.,'' ``14 Kt. Gold Overlay,'' or ``14K. R.G.P.''). When conforming to 
all such requirements except the specified minimum of \1/20\th of the 
weight of the metal in the entire article, the terms ``Gold Overlay'' 
and ``Rolled Gold Plate'' may be used when the karat fineness 
designation is immediately preceded by a fraction accurately disclosing 
the portion of the weight of the metal in the entire article accounted 
for by the plating, and when such fraction is of equal conspicuousness 
as the term used (for example, ``\1/40\th 12 Kt. Rolled Gold Plate'' or 
``\1/40\ 12 Kt. R.G.P.'').
---------------------------------------------------------------------------

    \5\ See footnote 3.
---------------------------------------------------------------------------

    (4) An industry product or part thereof, on which there has been 
affixed on all significant surfaces by an electrolytic process, an 
electroplating of gold, or of a gold alloy of not less than 10 karat 
fineness, which has a minimum thickness throughout equivalent to .175 
microns (approximately \7\/1,000,000ths of an inch) of fine 
gold, may be marked or described as ``Gold Electroplate'' or ``Gold 
Electroplated,'' or abbreviated, as, for example, ``G.E.P.'' When the 
electroplating meets the minimum fineness but not the minimum thickness 
specified above, the marking or description may be ``Gold Flashed'' or 
``Gold Washed.'' When the electroplating is of the minimum fineness 
specified above and of a minimum thickness throughout equivalent to two 
and one half (2\1/2\) microns (or approximately \100\/
1,000,000ths of an inch) of fine gold, the marking or 
description may be ``Heavy Gold Electroplate'' or ``Heavy Gold 
Electroplated.'' When electroplatings qualify for the term ``Gold 
Electroplate'' (or ``Gold Electroplated''), or the term ``Heavy Gold 
Electroplate'' (or ``Heavy Gold Electroplated''), and have been applied 
by use of a particular kind of electrolytic process, the marking may be 
accompanied by identification of the process used, as for example, 
``Gold Electroplated (X Process)'' or ``Heavy Gold Electroplated (Y 
Process).''
    (d) The provisions of this section relating to markings and 
descriptions of industry products and parts thereof are subject to the 
applicable tolerances of the National Stamping Act or any amendment 
thereof. \6\
---------------------------------------------------------------------------

    \6\ Under the National Stamping Act, articles or parts made of gold 
or of gold alloy that contain no solder have a permissible tolerance of 
three parts per thousand. If the part tested contains solder, the 
permissible tolerance is seven parts per thousand. For full text, see 15 
U.S.C. 295, et seq.

    Note 4 to paragraph (d):
    Exemptions recognized in the assay of karat gold industry products 
and in the assay of gold filled, gold overlay, and rolled gold plate 
industry products, and not to be considered in any assay for quality, 
are listed in the appendix.



Sec.  23.5  Misuse of the word ``vermeil.''

    (a) It is unfair or deceptive to represent, directly or by 
implication, that an industry product is ``vermeil'' if such mark or 
description misrepresents the product's true composition.
    (b) An industry product may be described or marked as ``vermeil'' if 
it consists of a base of sterling silver coated or plated on all 
significant surfaces with gold, or gold alloy of not less than 10 karat 
fineness, that is of substantial thickness \7\ and a minimum thickness 
throughout equivalent to two and one half (2\1/2\) microns (or 
approximately \100\/1,000,000ths of an inch) of fine gold.
---------------------------------------------------------------------------

    \7\ See footnote 3.

    Note 1 to Sec.  23.5: It is unfair or deceptive to use the term 
``vermeil'' to describe a product in which the sterling silver has been 
covered with a base metal (such as nickel) plated with gold unless there 
is a disclosure that the sterling silver is covered with a base metal 
that is plated with gold.
    Note 2 to Sec.  23.5: Exemptions recognized in the assay of gold 
filled, gold overlay, and rolled gold plate industry products are listed 
in the appendix.

[[Page 146]]



Sec.  23.6  Misrepresentation as to silver content.

    (a) It is unfair or deceptive to misrepresent that an industry 
product contains silver, or to misrepresent an industry product as 
having a silver content, plating, electroplating, or coating.
    (b) It is unfair or deceptive to mark, describe, or otherwise 
represent all or part of an industry product as ``silver,'' ``solid 
silver,'' ``Sterling Silver,'' ``Sterling,'' or the abbreviation 
``Ster.'' unless it is at least \925\/1,000ths pure silver.
    (c) It is unfair or deceptive to mark, describe, or otherwise 
represent all or part of an industry product as ``coin'' or ``coin 
silver'' unless it is at least \900\/1,000ths pure silver.
    (d) It is unfair or deceptive to mark, describe, or otherwise 
represent all or part of an industry product as being plated or coated 
with silver unless all significant surfaces of the product or part 
contain a plating or coating of silver that is of substantial thickness. 
\8\
---------------------------------------------------------------------------

    \8\ See footnote 3.
---------------------------------------------------------------------------

    (e) The provisions of this section relating to markings and 
descriptions of industry products and parts thereof are subject to the 
applicable tolerances of the National Stamping Act or any amendment 
thereof. \9\
---------------------------------------------------------------------------

    \9\ Under the National Stamping Act, sterling silver articles or 
parts that contain no solder have a permissible tolerance of four parts 
per thousand. If the part tested contains solder, the permissible 
tolerance is ten parts per thousand. For full text, see 15 U.S.C. 294, 
et seq.

    Note 1 to Sec.  23.6: The National Stamping Act provides that 
silverplated articles shall not ``be stamped, branded, engraved or 
imprinted with the word `sterling' or the word `coin,' either alone or 
in conjunction with other words or marks.'' 15 U.S.C. 297(a).
    Note 2 to Sec.  23.6: Exemptions recognized in the assay of silver 
industry products are listed in the appendix.



Sec.  23.7  Misuse of the words ``platinum,'' ``iridium,'' ``palladium,'' 
``ruthenium,'' ``rhodium,'' and ``osmium.''

    (a) It is unfair or deceptive to use the words ``platinum,'' 
``iridium,'' ``palladium,'' ``ruthenium,'' ``rhodium,'' and ``osmium,'' 
or any abbreviation to mark or describe all or part of an industry 
product if such marking or description misrepresents the product's true 
composition. The Platinum Group Metals (PGM) are Platinum, Iridium, 
Palladium, Ruthenium, Rhodium, and Osmium.
    (b) The following are examples of markings or descriptions that may 
be misleading: \10\
---------------------------------------------------------------------------

    \10\ See paragraph (c) of this section for examples of acceptable 
markings and descriptions.
---------------------------------------------------------------------------

    (1) Use of the word ``Platinum'' or any abbreviation, without 
qualification, to describe all or part of an industry product that is 
not composed throughout of 950 parts per thousand pure Platinum.
    (2) Use of the word ``Platinum'' or any abbreviation accompanied by 
a number indicating the parts per thousand of pure Platinum contained in 
the product without mention of the number of parts per thousand of other 
PGM contained in the product, to describe all or part of an industry 
product that is not composed throughout of at least 850 parts per 
thousand pure platinum, for example, ``600Plat.''
    (3) Use of the word ``Platinum'' or any abbreviation thereof, to 
mark or describe any product that is not composed throughout of at least 
500 parts per thousand pure Platinum.
    (c) The following are examples of markings and descriptions that are 
not considered unfair or deceptive:
    (1) The following abbreviations for each of the PGM may be used for 
quality marks on articles: ``Plat.'' or ``Pt.'' for Platinum; ``Irid.'' 
or ``Ir.'' for Iridium; ``Pall.'' or ``Pd.'' for Palladium; ``Ruth.'' or 
``Ru.'' for Ruthenium; ``Rhod.'' or ``Rh.'' for Rhodium; and ``Osmi.'' 
or ``Os.'' for Osmium.
    (2) An industry product consisting of at least 950 parts per 
thousand pure Platinum may be marked or described as ``Platinum.''
    (3) An industry product consisting of 850 parts per thousand pure 
Platinum, 900 parts per thousand pure Platinum, or 950 parts per 
thousand pure Platinum may be marked ``Platinum,'' provided that the 
Platinum marking is preceded by a number indicating the amount in parts 
per thousand of pure

[[Page 147]]

Platinum (for industry products consisting of 950 parts per thousand 
pure Platinum, the marking described in Sec.  23.7(b)(2) above is also 
appropriate). Thus, the following markings may be used: ``950Pt.,'' 
``950Plat.,'' ``900Pt.,'' ``900Plat.,'' ``850Pt.,'' or ``850Plat.''
    (4) An industry product consisting of at least 950 parts per 
thousand PGM, and of at least 500 parts per thousand pure Platinum, may 
be marked ``Platinum,'' provided that the mark of each PGM constituent 
is preceded by a number indicating the amount in parts per thousand of 
each PGM, as for example, ``600Pt.350Ir.,'' ``600Plat.350Irid.,'' or 
``550Pt.350Pd.50Ir.,'' ``550Plat.350Pall.50Irid.''

    Note to Sec.  23.7: Exemptions recognized in the assay of platinum 
industry products are listed in appendix A of this part.

[62 FR 16675, Apr. 8, 1997]



Sec.  23.8  Misrepresentation as to content of pewter.

    (a) It is unfair or deceptive to mark, describe, or otherwise 
represent all or part of an industry product as ``Pewter'' or any 
abbreviation if such mark or description misrepresents the product's 
true composition.
    (b) An industry product or part thereof may be described or marked 
as ``Pewter'' or any abbreviation if it consists of at least 900 parts 
per 1000 Grade A Tin, with the remainder composed of metals appropriate 
for use in pewter.



Sec.  23.9  Additional guidance for the use of quality marks.

    As used in these guides, the term quality mark means any letter, 
figure, numeral, symbol, sign, word, or term, or any combination 
thereof, that has been stamped, embossed, inscribed, or otherwise placed 
on any industry product and which indicates or suggests that any such 
product is composed throughout of any precious metal or any precious 
metal alloy or has a surface or surfaces on which there has been plated 
or deposited any precious metal or precious metal alloy. Included are 
the words ``gold,'' ``karat,'' ``carat,'' ``silver,'' ``sterling,'' 
``vermeil,'' ``platinum,'' ``iridium,'' ``palladium,'' ``ruthenium,'' 
``rhodium,'' or ``osmium,'' or any abbreviations thereof, whether used 
alone or in conjunction with the words ``filled,'' ``plated,'' 
``overlay,'' or ``electroplated,'' or any abbreviations thereof. Quality 
markings include those in which the words or terms ``gold,'' ``karat,'' 
``silver,'' ``vermeil,'' ``platinum'' (or platinum group metals), or 
their abbreviations are included, either separately or as suffixes, 
prefixes, or syllables.
    (a) Deception as to applicability of marks. (1) If a quality mark on 
an industry product is applicable to only part of the product, the part 
of the product to which it is applicable (or inapplicable) should be 
disclosed when, absent such disclosure, the location of the mark 
misrepresents the product or part's true composition.
    (2) If a quality mark is applicable to only part of an industry 
product, but not another part which is of similar surface appearance, 
each quality mark should be closely accompanied by an identification of 
the part or parts to which the mark is applicable.
    (b) Deception by reason of difference in the size of letters or 
words in a marking or markings. It is unfair or deceptive to place a 
quality mark on a product in which the words or letters appear in 
greater size than other words or letters of the mark, or when different 
markings placed on the product have different applications and are in 
different sizes, when the net impression of any such marking would be 
misleading as to the metallic composition of all or part of the product. 
(An example of improper marking would be the marking of a gold 
electroplated product with the word ``electroplate'' in small type and 
the word ``gold'' in larger type, with the result that purchasers and 
prospective purchasers of the product might only observe the word 
``gold.'')

    Note 1 to Sec.  23.9: Legibility of markings. If a quality mark is 
engraved or stamped on an industry product, or is printed on a tag or 
label attached to the product, the quality mark should be of sufficient 
size type as to be legible to persons of normal vision, should be so 
placed as likely to be observed by purchasers, and should be so attached 
as to remain thereon until consumer purchase.
    Note 2 to Sec.  23.9: Disclosure of identity of manufacturers, 
processors, or distributors. The National Stamping Act provides that any 
person, firm, corporation, or association, being a manufacturer or 
dealer subject to

[[Page 148]]

section 294 of the Act, who applies or causes to be applied a quality 
mark, or imports any article bearing a quality mark ``which indicates or 
purports to indicate that such article is made in whole or in part of 
gold or silver or of an alloy of either metal'' shall apply to the 
article the trademark or name of such person. 15 U.S.C. 297.



Sec.  23.10  Misuse of ``corrosion proof,'' ``noncorrosive,'' ``corrosion 
resistant,'' ``rust proof,'' ``rust resistant,'' etc.

    (a) It is unfair or deceptive to:
    (1) Use the terms ``corrosion proof,'' ``noncorrosive,'' ``rust 
proof,'' or any other term of similar meaning to describe an industry 
product unless all parts of the product will be immune from rust and 
other forms of corrosion during the life expectancy of the product; or
    (2) Use the terms ``corrosion resistant,'' ``rust resistant,'' or 
any other term of similar meaning to describe an industry product unless 
all parts of the product are of such composition as to not be subject to 
material damage by corrosion or rust during the major portion of the 
life expectancy of the product under normal conditions of use.
    (b) Among the metals that may be considered as corrosion (and rust) 
resistant are: Pure nickel; Gold alloys of not less than 10 Kt. 
fineness; and Austenitic stainless steels.



Sec.  23.11  Definition and misuse of the word ``diamond.''

    (a) A diamond is a natural mineral consisting essentially of pure 
carbon crystallized in the isometric system. It is found in many colors. 
Its hardness is 10; its specific gravity is approximately 3.52; and it 
has a refractive index of 2.42.
    (b) It is unfair or deceptive to use the unqualified word 
``diamond'' to describe or identify any object or product not meeting 
the requirements specified in the definition of diamond provided above, 
or which, though meeting such requirements, has not been symmetrically 
fashioned with at least seventeen (17) polished facets.

    Note 1 to paragraph (b):
    It is unfair or deceptive to represent, directly or by implication, 
that industrial grade diamonds or other non-jewelry quality diamonds are 
of jewelry quality.

    (c) The following are examples of descriptions that are not 
considered unfair or deceptive:
    (1) The use of the words ``rough diamond'' to describe or designate 
uncut or unfaceted objects or products satisfying the definition of 
diamond provided above; or
    (2) The use of the word ``diamond'' to describe or designate objects 
or products satisfying the definition of diamond but which have not been 
symmetrically fashioned with at least seventeen (17) polished facets 
when in immediate conjunction with the word ``diamond'' there is either 
a disclosure of the number of facets and shape of the diamond or the 
name of a type of diamond that denotes shape and that usually has less 
than seventeen (17) facets (e.g., ``rose diamond'').

    Note 2 to paragraph (c):
    Additional guidance about imitation and laboratory-created diamond 
representations and misuse of words ``gem,'' ``real,'' ``genuine,'' 
``natural,'' etc., are set forth in Sec. Sec.  23.23, 23.24, and 23.25.



Sec.  23.12  Misuse of the words ``flawless,'' ``perfect,'' etc.

    (a) It is unfair or deceptive to use the word ``flawless'' to 
describe any diamond that discloses flaws, cracks, inclusions, carbon 
spots, clouds, internal lasering, or other blemishes or imperfections of 
any sort when examined under a corrected magnifier at 10-power, with 
adequate illumination, by a person skilled in diamond grading.
    (b) It is unfair or deceptive to use the word ``perfect,'' or any 
representation of similar meaning, to describe any diamond unless the 
diamond meets the definition of ``flawless'' and is not of inferior 
color or make.
    (c) It is unfair or deceptive to use the words ``flawless'' or 
``perfect'' to describe a ring or other article of jewelry having a 
``flawless'' or ``perfect'' principal diamond or diamonds, and 
supplementary stones that are not of such quality, unless there is a 
disclosure that the description applies only to the principal diamond or 
diamonds.



Sec.  23.13  Disclosure of treatments to diamonds

    A diamond is a gemstone product. Treatments to diamonds should be 
disclosed in the manner prescribed in

[[Page 149]]

Sec.  23.22 of these guides, Disclosure of treatments to gemstones.

[65 FR 78743, Dec. 15, 2000]



Sec.  23.14  Misuse of the term ``blue white.''

    It is unfair or deceptive to use the term ``blue white'' or any 
representation of similar meaning to describe any diamond that under 
normal, north daylight or its equivalent shows any color or any trace of 
any color other than blue or bluish.



Sec.  23.15  Misuse of the term ``properly cut,'' etc.

    It is unfair or deceptive to use the terms ``properly cut,'' 
``proper cut,'' ``modern cut,'' or any representation of similar meaning 
to describe any diamond that is lopsided, or is so thick or so thin in 
depth as to detract materially from the brilliance of the stone.

    Note to Sec.  23.15: Stones that are commonly called ``fisheye'' or 
``old mine'' should not be described as ``properly cut,'' ``modern 
cut,'' etc.



Sec.  23.16  Misuse of the words ``brilliant'' and ``full cut.''

    It is unfair or deceptive to use the unqualified expressions 
``brilliant,'' ``brilliant cut,'' or ``full cut'' to describe, identify, 
or refer to any diamond except a round diamond that has at least thirty-
two (32) facets plus the table above the girdle and at least twenty-four 
(24) facets below.

    Note to Sec.  23.16: Such terms should not be applied to single or 
rose-cut diamonds. They may be applied to emerald-(rectangular) cut, 
pear-shaped, heart-shaped, oval-shaped, and marquise-(pointed oval) cut 
diamonds meeting the above-stated facet requirements when, in immediate 
conjunction with the term used, the form of the diamond is disclosed.



Sec.  23.17  Misrepresentation of weight and ``total weight.''

    (a) It is unfair or deceptive to misrepresent the weight of a 
diamond.
    (b) It is unfair or deceptive to use the word ``point'' or any 
abbreviation in any representation, advertising, marking, or labeling to 
describe the weight of a diamond, unless the weight is also stated as 
decimal parts of a carat (e.g., 25 points or .25 carat).

    Note 1 to paragraph (b):
    A carat is a standard unit of weight for a diamond and is equivalent 
to 200 milligrams (\1/5\ gram). A point is one one hundredth (\1/100\) 
of a carat.

    (c) If diamond weight is stated as decimal parts of a carat (e.g., 
.47 carat), the stated figure should be accurate to the last decimal 
place. If diamond weight is stated to only one decimal place (e.g., .5 
carat), the stated figure should be accurate to the second decimal place 
(e.g., ``.5 carat'' could represent a diamond weight between .495-.504).
    (d) If diamond weight is stated as fractional parts of a carat, a 
conspicuous disclosure of the fact that the diamond weight is not exact 
should be made in close proximity to the fractional representation and a 
disclosure of a reasonable range of weight for each fraction (or the 
weight tolerance being used) should also be made.

    Note to paragraph (d):
    When fractional representations of diamond weight are made, as 
described in paragraph d of this section, in catalogs or other printed 
materials, the disclosure of the fact that the actual diamond weight is 
within a specified range should be made conspicuously on every page 
where a fractional representation is made. Such disclosure may refer to 
a chart or other detailed explanation of the actual ranges used. For 
example, ``Diamond weights are not exact; see chart on p.X for ranges.''



Sec.  23.18  Definitions of various pearls.

    As used in these guides, the terms set forth below have the 
following meanings:
    (a) Pearl: A calcareous concretion consisting essentially of 
alternating concentric layers of carbonate of lime and organic material 
formed within the body of certain mollusks, the result of an abnormal 
secretory process caused by an irritation of the mantle of the mollusk 
following the intrusion of some foreign body inside the shell of the 
mollusk, or due to some abnormal physiological condition in the mollusk, 
neither of which has in any way been caused or induced by humans.
    (b) Cultured pearl: The composite product created when a nucleus 
(usually a sphere of calcareous mollusk shell) planted by humans inside 
the shell or in the mantle of a mollusk is coated with nacre by the 
mollusk.

[[Page 150]]

    (c) Imitation pearl: A manufactured product composed of any material 
or materials that simulate in appearance a pearl or cultured pearl.
    (d) Seed pearl: A small pearl, as defined in (a), that measures 
approximately two millimeters or less.



Sec.  23.19  Misuse of the word ``pearl.''

    (a) It is unfair or deceptive to use the unqualified word ``pearl'' 
or any other word or phrase of like meaning to describe, identify, or 
refer to any object or product that is not in fact a pearl, as defined 
in Sec.  23.18(a).
    (b) It is unfair or deceptive to use the word ``pearl'' to describe, 
identify, or refer to a cultured pearl unless it is immediately 
preceded, with equal conspicuousness, by the word ``cultured'' or 
``cultivated,'' or by some other word or phrase of like meaning, so as 
to indicate definitely and clearly that the product is not a pearl.
    (c) It is unfair or deceptive to use the word ``pearl'' to describe, 
identify, or refer to an imitation pearl unless it is immediately 
preceded, with equal conspicuousness, by the word ``artificial,'' 
``imitation,'' or ``simulated,'' or by some other word or phrase of like 
meaning, so as to indicate definitely and clearly that the product is 
not a pearl.
    (d) It is unfair or deceptive to use the terms ``faux pearl,'' 
``fashion pearl,'' ``Mother of Pearl,'' or any other such term to 
describe or qualify an imitation pearl product unless it is immediately 
preceded, with equal conspicuousness, by the word ``artificial,'' 
``imitation,'' or ``simulated,'' or by some other word or phrase of like 
meaning, so as to indicate definitely and clearly that the product is 
not a pearl.



Sec.  23.20  Misuse of terms such as ``cultured pearl,'' ``seed 

pearl,'' ``Oriental pearl,'' ``natura,'' ``kultured,'' ``real,'' 
``gem,'' ``synthetic,'' and regional designations.

    (a) It is unfair or deceptive to use the term ``cultured pearl,'' 
``cultivated pearl,'' or any other word, term, or phrase of like meaning 
to describe, identify, or refer to any imitation pearl.
    (b) It is unfair or deceptive to use the term ``seed pearl'' or any 
word, term, or phrase of like meaning to describe, identify, or refer to 
a cultured or an imitation pearl, without using the appropriate 
qualifying term ``cultured'' (e.g., ``cultured seed pearl'') or 
``simulated,'' ``artificial,'' or ``imitation'' (e.g., ``imitation seed 
pearl'').
    (c) It is unfair or deceptive to use the term ``Oriental pearl'' or 
any word, term, or phrase of like meaning to describe, identify, or 
refer to any industry product other than a pearl taken from a salt water 
mollusk and of the distinctive appearance and type of pearls obtained 
from mollusks inhabiting the Persian Gulf and recognized in the jewelry 
trade as Oriental pearls.
    (d) It is unfair or deceptive to use the word ``Oriental'' to 
describe, identify, or refer to any cultured or imitation pearl.
    (e) It is unfair or deceptive to use the word ``natura,'' 
``natural,'' ``nature's,'' or any word, term, or phrase of like meaning 
to describe, identify, or refer to a cultured or imitation pearl. It is 
unfair or deceptive to use the term ``organic'' to describe, identify, 
or refer to an imitation pearl, unless the term is qualified in such a 
way as to make clear that the product is not a natural or cultured 
pearl.
    (f) It is unfair or deceptive to use the term ``kultured,'' ``semi-
cultured pearl,'' ``cultured-like,'' ``part-cultured,'' ``pre-mature 
cultured pearl,'' or any word, term, or phrase of like meaning to 
describe, identify, or refer to an imitation pearl.
    (g) It is unfair or deceptive to use the term ``South Sea pearl'' 
unless it describes, identifies, or refers to a pearl that is taken from 
a salt water mollusk of the Pacific Ocean South Sea Islands, Australia, 
or Southeast Asia. It is unfair or deceptive to use the term ``South Sea 
cultured pearl'' unless it describes, identifies, or refers to a 
cultured pearl formed in a salt water mollusk of the Pacific Ocean South 
Sea Islands, Australia, or Southeast Asia.
    (h) It is unfair or deceptive to use the term ``Biwa cultured 
pearl'' unless it describes, identifies, or refers to cultured pearls 
grown in fresh water mollusks in the lakes and rivers of Japan.

[[Page 151]]

    (i) It is unfair or deceptive to use the word ``real,'' ``genuine,'' 
``precious,'' or any word, term, or phrase of like meaning to describe, 
identify, or refer to any imitation pearl.
    (j) It is unfair or deceptive to use the word ``gem'' to describe, 
identify, or refer to a pearl or cultured pearl that does not possess 
the beauty, symmetry, rarity, and value necessary for qualification as a 
gem.

    Note to paragraph (j):
    Use of the word ``gem'' with respect to cultured pearls should be 
avoided since few cultured pearls possess the necessary qualifications 
to properly be termed ``gems.'' Imitation pearls should not be described 
as ``gems.''

    (k) It is unfair or deceptive to use the word ``synthetic'' or 
similar terms to describe cultured or imitation pearls.
    (l) It is unfair or deceptive to use the terms ``Japanese Pearls,'' 
``Chinese Pearls,'' ``Mallorca Pearls,'' or any regional designation to 
describe, identify, or refer to any cultured or imitation pearl, unless 
the term is immediately preceded, with equal conspicuousness, by the 
word ``cultured,'' ``artificial,'' ``imitation,'' or ``simulated,'' or 
by some other word or phrase of like meaning, so as to indicate 
definitely and clearly that the product is a cultured or imitation 
pearl.



Sec.  23.21  Misrepresentation as to cultured pearls.

    It is unfair or deceptive to misrepresent the manner in which 
cultured pearls are produced, the size of the nucleus artificially 
inserted in the mollusk and included in cultured pearls, the length of 
time that such products remained in the mollusk, the thickness of the 
nacre coating, the value and quality of cultured pearls as compared with 
the value and quality of pearls and imitation pearls, or any other 
material matter relating to the formation, structure, properties, 
characteristics, and qualities of cultured pearls.



Sec.  23.22  Disclosure of treatments to gemstones.

    It is unfair or deceptive to fail to disclose that a gemstone has 
been treated if:
    (a) The treatment is not permanent. The seller should disclose that 
the gemstone has been treated and that the treatment is or may not be 
permanent;
    (b) The treatment creates special care requirements for the 
gemstone. The seller should disclose that the gemstone has been treated 
and has special care requirements. It is also recommended that the 
seller disclose the special care requirements to the purchaser;
    (c) The treatment has a significant effect on the stone's value. The 
seller should disclose that the gemstone has been treated.
    Note to Sec.  23.22: The disclosures outlined in this section are 
applicable to sellers at every level of trade, as defined in Sec.  
23.0(b) of these Guides, and they may be made at the point of sale prior 
to sale; except that where a jewelry product can be purchased without 
personally viewing the product, (e.g., direct mail catalogs, online 
services, televised shopping programs) disclosure should be made in the 
solicitation for or description of the product.

[65 FR 78743, Dec. 15, 2000]



Sec.  23.23  Misuse of the words ``ruby,'' ``sapphire,'' ``emerald,'' 
``topaz,'' ``stone,'' ``birthstone,'' ``gemstone,'' etc.

    (a) It is unfair or deceptive to use the unqualified words ``ruby,'' 
``sapphire,'' ``emerald,'' ``topaz,'' or the name of any other precious 
or semi-precious stone to describe any product that is not in fact a 
natural stone of the type described.
    (b) It is unfair or deceptive to use the word ``ruby,'' 
``sapphire,'' ``emerald,'' ``topaz,'' or the name of any other precious 
or semi-precious stone, or the word ``stone,'' ``birthstone,'' 
``gemstone,'' or similar term to describe a laboratory-grown, 
laboratory-created, [manufacturer name]-created, synthetic, imitation, 
or simulated stone, unless such word or name is immediately preceded 
with equal conspicuousness by the word ``laboratory-grown,'' 
``laboratory-created,'' ``[manufacturer name]-created,'' ``synthetic,'' 
or by the word ``imitation'' or ``simulated,'' so as to disclose clearly 
the nature of the product and the fact it is not a natural gemstone.

    Note to paragraph (h):
    The use of the word ``faux'' to describe a laboratory-created or 
imitation stone is not an adequate disclosure that the stone is not 
natural.


[[Page 152]]


    (c) It is unfair or deceptive to use the word ``laboratory-grown,'' 
``laboratory-created,'' ``[manufacturer name]-created,'' or 
``synthetic'' with the name of any natural stone to describe any 
industry product unless such industry product has essentially the same 
optical, physical, and chemical properties as the stone named.



Sec.  23.24  Misuse of the words ``real,'' ``genuine,'' ``natural,'' 
``precious,'' etc.

    It is unfair or deceptive to use the word ``real,'' ``genuine,'' 
``natural,'' ``precious,'' ``semi-precious,'' or similar terms to 
describe any industry product that is manufactured or produced 
artificially.



Sec.  23.25  Misuse of the word ``gem.''

    (a) It is unfair or deceptive to use the word ``gem'' to describe, 
identify, or refer to a ruby, sapphire, emerald, topaz, or other 
industry product that does not possess the beauty, symmetry, rarity, and 
value necessary for qualification as a gem.
    (b) It is unfair or deceptive to use the word ``gem'' to describe 
any laboratory-created industry product unless the product meets the 
requirements of paragraph (a) of this section and unless such word is 
immediately accompanied, with equal conspicuousness, by the word 
``laboratory-grown,'' ``laboratory-created,'' or ``[manufacturer-name]-
created,'' ``synthetic,'' or by some other word or phrase of like 
meaning, so as to clearly disclose that it is not a natural gem.

    Note to Sec.  23.25: In general, use of the word ``gem'' with 
respect to laboratory-created stones should be avoided since few 
laboratory-created stones possess the necessary qualifications to 
properly be termed ``gems.'' Imitation diamonds and other imitation 
stones should not be described as ``gems.'' Not all diamonds or natural 
stones, including those classified as precious stones, possess the 
necessary qualifications to be properly termed ``gems.''



Sec.  23.26  Misuse of the words ``flawless,'' ``perfect,'' etc.

    (a) It is unfair or deceptive to use the word ``flawless'' as a 
quality description of any gemstone that discloses blemishes, 
inclusions, or clarity faults of any sort when examined under a 
corrected magnifier at 10-power, with adequate illumination, by a person 
skilled in gemstone grading.
    (b) It is unfair or deceptive to use the word ``perfect'' or any 
representation of similar meaning to describe any gemstone unless the 
gemstone meets the definition of ``flawless'' and is not of inferior 
color or make.
    (c) It is unfair or deceptive to use the word ``flawless,'' 
``perfect,'' or any representation of similar meaning to describe any 
imitation gemstone.

 Appendix to Part 23--Exemptions Recognized in the Assay for Quality of 
 Gold Alloy, Gold Filled, Gold Overlay, Rolled Gold Plate, Silver, and 
                       Platinum Industry Products

    (a) Exemptions recognized in the industry and not to be considered 
in any assay for quality of a karat gold industry product include 
springs, posts, and separable backs of lapel buttons, posts and nuts for 
attaching interchangeable ornaments, metallic parts completely and 
permanently encased in a nonmetallic covering, field pieces and bezels 
for lockets, \1\ and wire pegs or rivets used for applying mountings and 
other ornaments, which mountings or ornaments shall be of the quality 
marked.
---------------------------------------------------------------------------

    \1\ Field pieces of lockets are those inner portions used as frames 
between the inside edges of the locket and the spaces for holding 
pictures. Bezels are the separable inner metal rings to hold the 
pictures in place.

    Note: Exemptions recognized in the industry and not to be considered 
in any assay for quality of a karat gold optical product include: the 
hinge assembly (barrel or other special types such as are customarily 
used in plastic frames); washers, bushings, and nuts of screw 
assemblies; dowels; springs for spring shoe straps; metal parts 
permanently encased in a non-metallic covering; and for oxfords, \2\ 
coil and joint springs.
---------------------------------------------------------------------------

    \2\ Oxfords are a form of eyeglasses where a flat spring joins the 
two eye rims and the tension it exerts on the nose serves to hold the 
unit in place. Oxfords are also referred to as pince nez.

    (b) Exemptions recognized in the industry and not to be considered 
in any assay for quality of a gold filled, gold overlay and rolled gold 
plate industry product, other than watchcases, include joints, catches, 
screws, pin stems, pins of scarf pins, hat pins, etc., field pieces and 
bezels for lockets, posts and separate backs of lapel buttons, bracelet 
and necklace snap tongues, springs,

[[Page 153]]

and metallic parts completely and permanently encased in a nonmetallic 
---------------------------------------------------------------------------
covering.

    Note: Exemptions recognized in the industry and not to be considered 
in any assay for quality of a gold filled, gold overlay and rolled gold 
plate optical product include: screws; the hinge assembly (barrel or 
other special types such as are customarily used in plastic frames); 
washers, bushings, tubes and nuts of screw assemblies; dowels; pad 
inserts; springs for spring shoe straps, cores and/or inner windings of 
comfort cable temples; metal parts permanently encased in a non-metallic 
covering; and for oxfords, the handle and catch.

    (c) Exemptions recognized in the industry and not to be considered 
in any assay for quality of a silver industry product include screws, 
rivets, springs, spring pins for wrist watch straps; posts and separable 
backs of lapel buttons; wire pegs, posts, and nuts used for applying 
mountings or other ornaments, which mountings or ornaments shall be of 
the quality marked; pin stems (e.g., of badges, brooches, emblem pins, 
hat pins, and scarf pins, etc.); levers for belt buckles; blades and 
skeletons of pocket knives; field pieces and bezels for lockets; 
bracelet and necklace snap tongues; any other joints, catches, or 
screws; and metallic parts completely and permanently encased in a 
nonmetallic covering.
    (d) Exemptions recognized in the industry and not to be considered 
in any assay for quality of an industry product of silver in combination 
with gold include joints, catches, screws, pin stems, pins of scarf 
pins, hat pins, etc., posts and separable backs of lapel buttons, 
springs, and metallic parts completely and permanently encased in a 
nonmetallic covering.
    (e) Exemptions recognized in the industry and not to be considered 
in any assay for quality of a platinum industry product include springs, 
winding bars, sleeves, crown cores, mechanical joint pins, screws, 
rivets, dust bands, detachable movement rims, hat-pin stems, and 
bracelet and necklace snap tongues. In addition, the following 
exemptions are recognized for products marked in accordance with section 
23.8(b)(5) of these Guides (i.e., products that are less than 500 parts 
per thousand platinum): pin tongues, joints, catches, lapel button backs 
and the posts to which they are attached, scarf-pin stems, hat pin 
sockets, shirt-stud backs, vest-button backs, and ear-screw backs, 
provided such parts are made of the same quality platinum as is used in 
the balance of the article.



PART 24_GUIDES FOR SELECT LEATHER AND IMITATION LEATHER PRODUCTS--Table of Contents




Sec.
24.0 Scope and purpose of guides.
24.1 Deception (general).
24.2 Deception as to composition.
24.3 Misuse of the terms ``waterproof,'' ``dustproof,'' ``warpproof,'' 
          ``scuffproof,'' ``scratchproof,'' ``scuff resistant,'' or 
          ``scratch resistant.''

    Authority: 15 U.S.C. 45, 46.

    Source: 61 FR 51583, Oct. 3, 1996, unless otherwise noted.



Sec.  24.0  Scope and purpose of guides.

    (a) The Guides in this part apply to the manufacture, sale, 
distribution, marketing, or advertising of all kinds or types of leather 
or simulated-leather trunks, suitcases, traveling bags, sample cases, 
instrument cases, brief cases, ring binders, billfolds, wallets, key 
cases, coin purses, card cases, French purses, dressing cases, stud 
boxes, tie cases, jewel boxes, travel kits, gadget bags, camera bags, 
ladies' handbags, shoulder bags, purses, pocketbooks, footwear, belts 
(when not sold as part of a garment) and similar articles (hereinafter, 
``industry products'').
    (b) These Guides represent administrative interpretations of laws 
administered by the Federal Trade Commission for the guidance of the 
public in conducting its affairs in conformity with legal requirements. 
These Guides specifically address the application of section 5 of the 
FTC Act (15 U.S.C. 45) to the manufacture, sale, distribution, 
marketing, and advertising of industry products listed in paragraph (a) 
of this section. They provide the basis for voluntary compliance with 
such laws by members of industry. Conduct inconsistent with the 
positions articulated in these Guides may result in corrective action by 
the Commission under section 5 if, after investigation, the Commission 
has reason to believe that the behavior falls within the scope of 
conduct declared unlawful by the statute.

[[Page 154]]



Sec.  24.1  Deception (general).

    It is unfair or deceptive to misrepresent, directly or by 
implication, the kind, grade, quality, quantity, material content, 
thickness, finish, serviceability, durability, price, origin, size, 
weight, ease of cleaning, construction, manufacture, processing, 
distribution, or any other material aspect of an industry product.



Sec.  24.2  Deception as to composition.

    It is unfair or deceptive to misrepresent, directly or by 
implication, the composition of any industry product or part thereof. It 
is unfair or deceptive to use the unqualified term ``leather'' or other 
unqualified terms suggestive of leather to describe industry products 
unless the industry product so described is composed in all substantial 
parts of leather. \1\ This section includes, but is not limited to, the 
following:
---------------------------------------------------------------------------

    \1\ For purposes of these Guides, footwear is composed of three 
parts: the upper, the lining and sock, and the outersole. These three 
parts are defined as follows: (1) The upper is the outer face of the 
structural element which is attached to the outersole; (2) the lining 
and sock are the lining of the upper and the insole, constituting the 
inside of the footwear article; and (3) the outersole is the bottom part 
of the footwear article subjected to abrasive wear and attached to the 
upper.
---------------------------------------------------------------------------

    (a) Imitation or simulated leather. If all or part of an industry 
product is made of non-leather material that appears to be leather, the 
fact that the material is not leather, or the general nature of the 
material as something other than leather, should be disclosed. For 
example: Not leather; Imitation leather; Simulated leather; Vinyl; Vinyl 
coated fabric; or Plastic.
    (b) Embossed or processed leather. The kind and type of leather from 
which an industry product is made should be disclosed when all or part 
of the product has been embossed, dyed, or otherwise processed so as to 
simulate the appearance of a different kind or type of leather. For 
example:
    (1) An industry product made wholly of top grain cowhide that has 
been processed so as to imitate pigskin may be represented as being made 
of Top Grain Cowhide.
    (2) Any additional representation concerning the simulated 
appearance of an industry product composed of leather should be 
immediately accompanied by a disclosure of the kind and type of leather 
in the product. For example: Top Grain Cowhide With Simulated Pigskin 
Grain.
    (c) Backing material. (1) The backing of any material in an industry 
product with another kind of material should be disclosed when the 
backing is not apparent upon casual inspection of the product, or when a 
representation is made which, absent such disclosure, would be 
misleading as to the product's composition. For example: Top Grain 
Cowhide Backed With Vinyl.
    (2) The composition of the different backing material should be 
disclosed if it is visible and consists of non-leather material with the 
appearance of leather, or leather processed so as to simulate a 
different kind of leather.
    (d) Misuse of trade names, etc. A trade name, coined name, 
trademark, or other word or term, or any depiction or device should not 
be used if it misrepresents, directly or by implication, that an 
industry product is made in whole or in part from animal skin or hide, 
or that material in an industry product is leather or other material. 
This includes, among other practices, the use of a stamp, tag, label, 
card, or other device in the shape of a tanned hide or skin or in the 
shape of a silhouette of an animal, in connection with any industry 
product that has the appearance of leather but that is not made wholly 
or in substantial part from animal skin or hide.
    (e) Misrepresentation that product is wholly of a particular 
composition. A misrepresentation should not be made, directly or by 
implication, that an industry product is made wholly of a particular 
composition. A representation as to the composition of a particular part 
of a product should clearly indicate the part to which the 
representation applies.\2\ Where a product is made principally of 
leather but has certain

[[Page 155]]

non-leather parts that appear to be leather, the product may be 
described as made of leather so long as accompanied by clear disclosure 
of the non-leather parts. For example:
---------------------------------------------------------------------------

    \2\ With regard to footwear, it is sufficient to disclose the 
presence of non-leather materials in the upper, the lining and sock, or 
the outersole, provided that the disclosure is made according to 
predominance of materials. For example, if the majority of the upper is 
composed of manmade material: Upper of manmade materials and leather.
---------------------------------------------------------------------------

    (1) An industry product made of top grain cowhide except for frame 
covering, gussets, and partitions that are made of plastic but have the 
appearance of leather may be described as: Top Grain Cowhide With 
Plastic Frame Covering, Gussets and Partitions; or Top Grain Cowhide 
With Gussets, Frame Covering and Partitions Made of Non-Leather 
Material.
    (2) An industry product made throughout, except for hardware, of 
vinyl backed with cowhide may be described as: Vinyl Backed With Cowhide 
(See also disclosure provision concerning use of backing material in 
paragraph (c) of this section).
    (3) An industry product made of top grain cowhide except for 
partitions and stay, which are made of plastic-coated fabric but have 
the appearance of leather, may be described as: Top Grain Cowhide With 
Partitions and Stay Made of Non-leather Material; or Top Grain Cowhide 
With Partitions and Stay Made of Plastic-Coated Fabric.
    (f) Ground, pulverized, shredded, reconstituted, or bonded leather. 
A material in an industry product that contains ground, pulverized, 
shredded, reconstituted, or bonded leather and thus is not wholly the 
hide of an animal should not be represented, directly or by implication, 
as being leather. This provision does not preclude an accurate 
representation as to the ground, pulverized, shredded, reconstituted, or 
bonded leather content of the material. However, if the material appears 
to be leather, it should be accompanied by either:
    (1) An adequate disclosure as described by paragraph (a) of this 
section; or
    (2) If the terms ``ground leather,'' ``pulverized leather,'' 
``shredded leather,'' ``reconstituted leather,'' or ``bonded leather'' 
are used, a disclosure of the percentage of leather fibers and the 
percentage of non-leather substances contained in the material. For 
example: An industry product made of a composition material consisting 
of 60% shredded leather fibers may be described as: Bonded Leather 
Containing 60% Leather Fibers and 40% Non-leather Substances.
    (g) Form of disclosures under this section. All disclosures 
described in this section should appear in the form of a stamping on the 
product, or on a tag, label, or card attached to the product, and should 
be affixed so as to remain on or attached to the product until received 
by the consumer purchaser. All such disclosures should also appear in 
all advertising of such products irrespective of the media used whenever 
statements, representations, or depictions appear in such advertising 
which, absent such disclosures, serve to create a false impression that 
the products, or parts thereof, are of a certain kind of composition. 
The disclosures affixed to products and made in advertising should be of 
such conspicuousness and clarity as to be noted by purchasers and 
prospective purchasers casually inspecting the products or casually 
reading, or listening to, such advertising. A disclosure necessitated by 
a particular representation should be in close conjunction with the 
representation.



Sec.  24.3  Misuse of the terms ``waterproof,'' ``dustproof,'' 

``warpproof,'' ``scuffproof,'' ``scratchproof,'' ``scuff resistant,'' 
and ``scratch resistant.''

    It is unfair or deceptive to:
    (a) Use the term ``Waterproof'' to describe all or part of an 
industry product unless the designated product or material prevents 
water from contact with its contents under normal conditions of intended 
use during the anticipated life of the product or material.
    (b) Use the term ``Dustproof'' to describe an industry product 
unless the product is so constructed that when it is closed dust cannot 
enter it.
    (c) Use the term ``Warpproof'' to describe all or part of an 
industry product unless the designated product or part is such that it 
cannot warp.
    (d) Use the term ``Scuffproof,'' ``Scratchproof,'' or other terms 
indicating that the product is not subject to wear in any other respect, 
to describe an industry product unless the outside surface of the 
product is immune to scratches or scuff marks, or is not subject to wear 
as represented.

[[Page 156]]

    (e) Use the term ``Scuff Resistant,'' ``Scratch Resistant,'' or 
other terms indicating that the product is resistant to wear in any 
other respect, unless there is a basis for the representation and the 
outside surface of the product is meaningfully and significantly 
resistant to scuffing, scratches, or to wear as represented.

                         PARTS 25	227 [RESERVED]



PART 228_TIRE ADVERTISING AND LABELING GUIDES--Table of Contents




Sec.
228.0 ``Industry Product'' and ``Industry Member'' defined.
228.0-1 Use of guide principles.
228.1 Tire description.
228.2 Designations of grade, line, level, or quality.
228.3 Deceptive designations.
228.4 Original equipment.
228.5 Comparative quality and performance claims.
228.6 Ply count, plies, ply rating.
228.7 Cord materials.
228.8 ``Change-Overs,'' ``New Car Take Offs,'' etc.
228.9 Retreaded and used tires.
228.10 Disclosure that products are obsolete or discontinued models.
228.11 Blemished, imperfect, defective, etc., products.
228.12 Pictorial misrepresentations.
228.13 Racing claims.
228.14 Bait advertising.
228.15 Deceptive pricing.
228.16 Guarantees.
228.17 Safety or performance features.
228.18 Other claims and representations.
228.19 Snow tire advertising.

    Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C. 45, 
46.

    Source: 32 FR 15525, Nov. 8, 1967, unless otherwise noted.



Sec.  228.0  ``Industry Product'' and ``Industry Member'' defined.

    As used in this part, the terms Industry Product or Product shall 
mean pneumatic tires for use on passenger automobiles, station wagons, 
and similar vehicles, or the materials used therein. The term Industry 
Member shall mean: All persons or firms who are engaged in the 
manufacture, sale or distribution of industry products as above defined 
whether under the manufacturer's or a private brand; and the 
manufacturers of passenger automobiles, station wagons, and similar 
vehicles for which industry products are provided as original equipment.



Sec.  228.0-1  Use of guide principles.

    The following general principles will be used in determining whether 
terminology and other direct or indirect representations subject to the 
Commission's jurisdiction regarding industry products conform to laws 
administered by the Commission.



Sec.  228.1  Tire description.

    (a) The purchase of tires for a motor vehicle is an extremely 
important matter to the consumer. Not only are substantial economic 
factors involved, but in most instances the purchaser will entrust the 
safety of himself and others to the performance of the product.
    (b) To avoid being deceived, the consumer must have certain basic 
information. Certain of this information should be provided before the 
purchaser makes his choice but other is essential throughout the life of 
the tire.
    (1) Disclosure before the sale. The following information should be 
disclosed in point of sale material which is prominently displayed and 
of easy access, on the premises where the purchase is to be made in 
order to appraise the consumer:
    (i) Load-carrying capacity of the tire. This information is 
essential to assure the purchaser that the tires he selects are capable 
of safely carrying the intended load. This information should consist of 
the maximum load-carrying capacity as related to various recommended air 
pressures and may include data which indicates the effect such varying 
pressures will have on the operation of the automobile. All such 
information shall be based on actual tests utilizing adequate and 
technically sound procedures. The test procedures and results shall be 
in writing and available for inspection.
    (ii) Generic name of cord material. Different cord materials can 
have performance characteristics that will affect the consumer's 
selection of tires. These various characteristics are widely advertised, 
and the consumer is aware of the distinctions. Without a disclosure of 
the generic name of the

[[Page 157]]

cord material, the consumer is unable to consider this factor in his 
purchase.
    (iii) Actual number of plies. Consumers have preference for industry 
products of a stated type of construction (e.g., 2 ply v. 4 ply). 
Without adequate disclosure the consumer is denied the basis for 
considering this factor in his selection.

    Note: Where the tire is of radial construction the ply count 
disclosure will be satisfied by the statement ``radial ply.''

    (2) Disclosure on the tire. The following information should be 
clearly disclosed in a permanent manner on the outside wall of the tire:
    (i) Size. Size is extremely important not only to insure that the 
tire will fit the vehicle wheel, but because it also is a determining 
factor as to the load-carrying capacity of the vehicle.
    (ii) Whether tire is tubeless or tube type.
    (iii) Actual number of plies.

    Note: Where the tire is of radial construction the ply count 
disclosure will be satisfied by the statement ``radial ply.''

    (3) Other disclosures--(i) Generic name of cord material used in 
ply. A disclosure of the generic name of the cord material used in the 
ply of the tire should be made on a label or tag prominently displayed 
on the tire itself, and affixed in such a fashion that it cannot be 
easily removed prior to sale.
    (ii) Load-carrying capacity and inflation pressure. One of the most 
important factors in obtaining tire performance is proper care and use. 
Included in such care is inflating the tire to the required level as 
related to load-carrying capacity and use. To insure that such pressures 
are maintained by the user and the tire is not overloaded beyond its 
safe capacity, a table or chart should be provided for retention by the 
purchaser. This will apprise the purchaser of the load-carrying capacity 
of the tires as related to the range of recommended air pressures and 
use. It may also supply data which indicate the effect such varying 
pressures will have on the operation of the automobile.

    Note: Automobile manufacturers who provide tires as original 
equipment with new automobiles should incorporate such information in 
the owner's manual given to new car purchasers.


[Guide 1]

[32 FR 15525, Nov. 8, 1967, as amended at 33 FR 982, Jan. 26, 1968]



Sec.  228.2  Designations of grade, line, level, or quality.

    (a) There exists today no industrywide, government or other accepted 
system of quality standards or grading of industry products. Within the 
industry, however, a variety of trade terminology has developed which, 
when used in conjunction with consumer transactions, has the tendency to 
suggest that a system of quality standards or grading does in fact 
exist. Typical of such terminology are the expressions ``line,'' 
``level,'' and ``premium.'' The exact meaning of such terminology may 
vary from one industry member to another. Therefore, the ``1st line'' or 
``100 level'' or ``premium'' tire of one industry member may be grossly 
inferior to the ``1st line'' or ``100 level'' or ``premium'' tire of 
another member since in the absence of an accepted system of grading or 
quality standards, each member can determine what ``line,'' ``level,'' 
or ``premium'' classification to attach to a tire.
    (b) The consumer does not understand the significance of the absence 
of accepted grading or quality standards and is likely to assume that 
the expressions ``line,'' ``level,'' and ``premium'' connote valid 
criteria. Since the consumer is likely to misinterpret the meaning of 
such terminology, he may be deceived into purchasing an inferior product 
because it has been given such designation.
    (c) In the absence of an accepted system of grading or quality 
standards for industry products, it is improper to represent, either 
through the use of such expressions as ``line,'' ``level,'' ``premium'' 
or in any other manner, that such a system exists, unless the 
representation is accompanied by a clear and conspicuous disclosure:
    (1) That no industrywide or other accepted system of quality 
standards or grading of industry products currently exists, and
    (2) That representations as to grade, line, level, or quality, 
relate only to the private standard of the marketer of the tire so 
described (e.g., ``XYZ first line'').

[[Page 158]]

    (d) Additionally, products should not be described as being ``first 
line'' unless the products so described are the best products, exclusive 
of premium quality products embodying special features, of the 
manufacturer or brand name distributor applying such designation. [Guide 
2]



Sec.  228.3  Deceptive designations.

    In the advertising or labeling of products, industry members should 
not use designations for grades of products they offer to the public:
    (a) Which have the capacity to deceive purchasers into believing 
that such products are equal or superior to a better grade or grades of 
their products when such conclusion would be contrary to fact (for 
example, if the ``first line'' tire of a manufacturer is designated as 
``Standard,'' ``High Standard,'' or ``Deluxe High Standard,'' the tires 
of that manufacturer which are of lesser quality should not be 
designated or described as ``Super Standard,'' ``Supreme High 
Standard,'' ``Super Deluxe High Standard,'' or ``Premium''), or
    (b) Which are otherwise false or misleading.

    Note: When a manufacturer applies a designation to a product which 
falsely represents or implies the product is equal or superior in 
quality to its better grade or grades of products, it is responsible for 
any resulting deception whether it is a direct result of the designation 
or a result of the placing in the hands of others a means and 
instrumentality for the creation by them of a false and deceptive 
impression with respect to the comparative quality of products made by 
that manufacturer.


[Guide 3]



Sec.  228.4  Original equipment.

    Original equipment tires are understood to mean the same brand and 
quality tires used generally as original equipment on new current models 
of vehicles of domestic manufacture. A tire which was formerly but is 
not currently used as ``Original Equipment,'' should not be described as 
``Original Equipment'' without clear and conspicuous disclosure in close 
conjunction with the term, of the latest actual year such tire was used 
as ``Original Equipment.'' [Guide 4]



Sec.  228.5  Comparative quality and performance claims.

    Representations and claims made by industry members that their 
products are superior in quality or performance to other products should 
not be made unless:
    (a) The representation or claim is based on an actual test utilizing 
adequate and technically sound procedures of the performance of the 
advertised product and of the product with which it is compared; the 
test procedure, results of which are in writing and available for 
inspection; and
    (b) The basis of the comparison is clearly stated and the comparison 
is based on identical conditions of use. Dangling comparatives should 
not be used.
    (c) Claims or representations that one tire is comparable or 
identical to another should not be used unless the advertiser is able to 
establish that such tires are comparable not only as respects the molds 
in which the tires are made, but also as respects all significant 
materials used in their construction. [Guide 5]



Sec.  228.6  Ply count, plies, ply rating.

    A ply is a layer of rubberized fabric contained in the body of the 
tire and extending from one bead of the tire to the other bead of the 
tire. The consumer is interested in, and is entitled to know, certain 
information in regard to plies in tires. However, a great deal of 
terminology connected with plies which is utilized in advertising has 
the tendency to confuse and deceive the public and is accordingly 
inappropriate.
    (a) It is improper to utilize any statement or depiction which 
denotes or implies that tires possess more plies than they in fact 
actually possess. Phrases such as ``Super 6'' or ``Deluxe 8'' as 
descriptive of tires of less than 6 or 8 plies, respectively, should not 
be used.
    (b) The actual number of plies in a tire is not necessarily 
determinative of the ultimate strength, performance or quality of the 
product. Variations in the amount and type of fabric utilized in the ply 
and other construction features of the tire will determine the ultimate 
strength, performance or quality of the product. Through variations

[[Page 159]]

in these construction aspects, a tire of a stated number of plies may be 
inferior in strength, quality, and performance to another tire of lesser 
actual ply count. Accordingly, it is improper to represent in 
advertising, or otherwise, that solely because a product has more plies 
than another, it is superior.
    (c)(1) The expression ``ply rating'' as used in the trade is an 
index of tire strength. Each manufacturer, however, has his own system 
of computing ``ply rating.'' Thus, a product of one industry member of a 
stated ``ply rating'' is not necessarily of the same strength as the 
product of another member with the identical rating. While the 
expression ``ply rating'' may have significance to industry members, in 
the absence of a publicized system of standardized ratings, the use of 
such expressions in connection with sales to the general public may be 
deceptive.
    (2) To avoid deception, the expression ``ply rated'' or ``ply 
rating'' or any similar language should not be used unless said claim is 
based on actual tests utilizing adequate and technically sound 
procedures, the results of which are in writing and available for 
inspection. Further, certain disclosures must be made when such 
expressions are used in connection with consumer transactions.
    (3) When ply rating is stated on the tire itself, it must be 
accompanied in immediate conjunction therewith, and in identical size 
letters, the disclosure of the actual ply count. In addition, there must 
be a tag or label attached to the tire or its packaging, of such 
permanency that it cannot easily be removed prior to sale to the 
consumer, which tag or label contains a clear and conspicuous 
disclosure:
    (i) That there is no industrywide definition of ply rating; and
    (ii) Of the basis of comparison of the claimed rating. (For example, 
``2-ply tire, 4-ply rating means this 2-ply tire is equivalent to our 
current or most recent 4-ply nylon cord tire.'')
    (4) When ply rating is used in advertising or in other sales or 
promotional materials, in addition to the disclosure of actual ply count 
as indicated, it must be accompanied by the disclosure:
    (i) That there is no industrywide definition of ply rating; and
    (ii) Of the basis of comparison of the claimed rating. (For example, 
``2-ply tire, 4-ply rating means this 2-ply tire is equivalent to our 
current or most recent 4-ply nylon cord tire.'') [Guide 6]



Sec.  228.7  Cord materials.

    (a) The fabric that is utilized in the ply is known as the cord 
material. The use of a particular type of cord material may be 
determined by the use to which the tire will be placed. One type of cord 
material may provide one desired characteristic, but not be used because 
of other characteristics which may be unfavorable.
    (b) The type of cord material utilized in a tire is not necessarily 
determinative of its ultimate quality, performance or strength. Through 
variations in the denier of the material, the amount to be used and 
other construction aspects of the tire, the ultimate quality, 
performance, and strength is determined.
    (c) It is improper to represent in advertising, or otherwise, that 
solely because a particular type of cord material is utilized in the 
construction of a tire, it is superior to tires constructed with other 
types of cord material. Such advertising is deceptive for it creates 
that impression in the consumer's mind whereas in fact it does not take 
into consideration the other variable aspects of tire construction.
    (d) When the type of cord material is referred to in advertising, it 
must be made clear that it is only the cord that is of the particular 
material and not the entire tire. For example, it would be improper to 
refer to a product as ``Nylon Tire.'' The proper description is ``Nylon 
Cord Tire.'' Similarly, when the manufacturer of the cord material is 
mentioned, it should be made clear that he did not manufacture the tire. 
For example, a tire should be described as ``Brand X Nylon Cord 
Material'' and not ``Brand X Nylon Tire.''
    (e) Cord material should be identified by its generic name when 
referred to in advertising. [Guide 7]



Sec.  228.8  ``Change-Overs,'' ``New Car Take Offs,'' etc.

    Industry products should not be represented as ``Change-Overs'' or 
``New Car Take Offs'' unless the products so

[[Page 160]]

described have been subjected to but insignificant use necessary in 
moving new vehicles prior to delivery of such vehicles to franchised 
distributor or retailer. ``Change-Overs'' or ``New Car Take Offs'' 
should not be described as new. Advertisements of such products should 
include a clear and conspicuous disclosure that ``Change-Overs'' or 
``New Car Take Offs'' have been subjected to previous use. [Guide 8]



Sec.  228.9  Retreaded and used tires.

    Advertisements of used or retreaded products should clearly and 
conspicuously disclose that same are not new products. Unexplained 
terms, such as ``New Tread,'' ``Nu-Tread'' and ``Snow Tread'' as 
descriptive of such tires do not constitute adequate disclosure that 
tires so described are not new. Any terms disclosing that tires are not 
new also shall not misrepresent the performance, the type of 
manufacture, or any other attribute of such tires. See Sec.  228.18. 
[Guide 9]

[32 FR 15525, Nov. 8, 1967, as amended at 58 FR 64882, Dec. 10, 1993]



Sec.  228.10  Disclosure that products are obsolete or discontinued models.

    Advertisements should clearly and conspicuously disclose that the 
products offered are discontinued models or designs or are obsolete when 
such is the fact.

    Note: The words ``model'' and ``design'' used in connection with 
tires include width, depth, and pattern of the tread as well as other 
aspects of their construction.


[Guide 10]



Sec.  228.11  Blemished, imperfect, defective, etc., products.

    Advertisements of products which are blemished, imperfect, or which 
for any reason are defective, should contain conspicuous disclosure of 
that fact. In addition, such products should have permanently stamped or 
molded thereon or affixed thereto and to the wrappings in which they are 
encased a plain and conspicuous legend or statement to the effect that 
such products are blemished, imperfect, or defective. Such markings by a 
legend such as ``XX'' or by a color marking or by any other code 
designation which is not generally understood by the public are not 
considered to be an adequate disclosure. [Guide 11]



Sec.  228.12  Pictorial misrepresentations.

    (a) It is improper to utilize in advertising, any picture or 
depiction of an industry product other than the product offered for 
sale. Where price is featured in advertising, any picture or depiction 
utilized in connection therewith should be the exact tire offered for 
sale at the advertised price.
    (b) For example, it would be improper to depict a white side wall 
tire with a designated price when the price is applicable to black wall 
tires. Such practice would be improper even if a disclosure is made 
elsewhere in the advertisement that the featured price is not for the 
depicted whitewalls. [Guide 12]



Sec.  228.13  Racing claims.

    (a) Advertising in connection with racing, speed records, or similar 
events should clearly and conspicuously disclose that the tires on the 
vehicle are not generally available all purpose tires, unless such is 
the fact.
    (b) The requirement of this section is applicable also to special 
purpose racing tires, which although available for such special purpose, 
are not the advertiser's general purpose product.
    (c) Similarly, designations should not be utilized in conjunction 
with any industry product which falsely suggest, directly or indirectly, 
that such product is the identical one utilized in racing events or in a 
particular event. [Guide 13]



Sec.  228.14  Bait advertising.

    (a) Bait advertising is an alluring but insincere offer to sell a 
product which the advertiser in truth does not intend or want to sell. 
Its purpose is to obtain leads as to persons interested in buying 
industry products and to induce them to visit the member's premises. 
After the person visits the premises, the primary effort is to switch 
him from buying the advertised product in order to sell something else, 
usually at a higher price.
    (b) No advertisement containing an offer to sell a product should be 
published when the offer is not a bona fide effort to sell the 
advertised product.

[[Page 161]]

Among the acts and practices which will be considered in determining if 
an advertisement is bona fide are:
    (1) The advertising of a product at a price applicable only to 
unusual or off size tires or for special purpose tires;
    (2) The refusal to show or sell the product offered in accordance 
with the terms of the offer;
    (3) The failure to have available at all outlets listed in the 
advertisement a sufficient quantity of the advertised product to meet 
reasonably anticipated demands, unless the advertisement clearly and 
adequately discloses that the supply is limited and/or the merchandise 
is available only at designated outlets;
    (4) The disparagement by acts or words of the advertised product or 
the disparagement of the guarantee, credit terms, or in any other 
respect in connection with it;
    (5) Use of a sales plan or method of compensation for salesmen or 
penalizing salesmen, designed to prevent or discourage them from selling 
the advertised product. [Guide 14]



Sec.  228.15  Deceptive pricing.

    (a) Former price comparisons. One form of advertising in the 
replacement market is the offering of reductions or savings from the 
advertiser's former price. This type of advertising may take many forms, 
of which the following are examples:

Formerly $---------- Reduced to $--------. 50% Off--Sale Priced at $----
----.


Such advertising is valid where the basis of comparison, that is, the 
price on which the represented savings are based, is the actual bona 
fide price at which the advertiser recently and regularly sold the 
advertised tire to the public for a reasonably substantial period of 
time prior to the advertised sale. However, where the basis of 
comparison (1) is not the advertiser's actual selling price, (2) is a 
price which was not used in the recent past but at some remote period in 
the past, or (3) is a price which has been used for only a short period 
of time and a reduction is claimed therefrom, the claimed savings or 
reduction is fictitious and the purchaser deceived. Following are 
examples illustrating the application of this provision:

    Example 1. Dealer A advertises a tire as follows: ``Memorial Day 
Sale--Regular price of tire, $15.95--Reduced to $13.95.'' During the 
preceding 6 months Dealer A has conducted numerous ``sales'' at which 
the tire was sold in large quantities at the $13.95 price. The tire was 
sold at $15.95 only during periods between the so-called ``sales.'' In 
these circumstances, the advertised reduction from a ``regular'' price 
of $15.95 would be improper, since that was not the price at which the 
tire was recently and regularly sold to the public for a reasonably 
substantial period of time prior to the advertised sale.
    Example 2. Dealer B engaged in sale advertising weekly on the last 3 
days of the week. It was his practice during the selling week to offer a 
particular line of tires at $24.95 on Monday, Tuesday, and Wednesday, 
and advertise the same line as ``Sale Priced $19.95'' on the final 3 
days of the selling week. Use of the price for only 3 days prior to the 
reduction, even though the higher price is resumed after 3 days of 
``sale'' advertising would not constitute a basis for claiming a price 
reduction. The higher price was not the regular selling price for a 
reasonably substantial period of time. Furthermore, when the higher 
price is used only for the first 3 days of the week and another price is 
used for the final 3 days, the higher price has not been established as 
a regular price, especially when most sales are made at the lower price 
during the final 3-day period.

    (b) Trade area price comparisons. (1) Another recognized form of 
bargain advertising is to offer tires at prices lower than those being 
charged by others for the same tires in the area where the advertiser is 
doing business. Examples of this type of advertising where used in 
connection with the advertiser's own price are:

Sold Elsewhere at $--------.
Retail Value $--------.

    (2) The tire market, because of its nature, requires that special 
care and precaution be exercised before this type of advertising is 
used. Trade area price comparisons are understood by purchasers to mean 
that the represented bargain is a reduction or saving from the price 
being charged by representative retail outlets for the same tires at the 
time of the advertisement.
    (3) If a tire manufacturer decides to conduct a promotion of a 
particular tire, reduces the price in his wholly owned stores and 
independent dealers

[[Page 162]]

follow the promotion price, the ``sale'' price has become the retail 
price in the area and it would be deceptive to represent that this 
``sale'' price is reduced from that charged by others. In most 
circumstances where a promotion is sponsored by the manufacturer and is 
followed by the wholly owned stores and most of the independent dealers 
in the area, such trade area price comparisons would be improper.
    (4) A trade area price comparison would be valid where an individual 
dealer, acting on his own, decides to lower the price of a tire 
significantly below that being charged by others in his area. In this 
situation, he would be honestly offering a genuine reduction from the 
price charged by others in his area.
    (5) When using a retail price comparison great care should be 
exercised to make the advertising clear that the basis of the reduction 
or saving is the price being charged by others and not the advertiser's 
own former selling price.
    (c) Substantiality of reduction or savings. In order for an 
advertiser to represent that a price is reduced or offers savings to 
purchasers without specifying the extent thereof, it is necessary that 
the represented reduction or savings be significant. When the amount of 
the reduction or savings is not stated in advertising and is not 
substantial enough to attract and influence prospective purchasers if 
they knew the true facts, the representation is deceptive.

    Example Dealer C advertises a Fourth of July sale featuring X brand 
tires at a claimed reduction in price. The sale price in the 
advertisement is stated as $14.75 per tire. The advertisement does not 
state the former price of the tire. The tire previously had been sold at 
$14.95. Under the circumstances, the advertisement would be deceptive. 
The 20-cent reduction in price is insignificant when compared with the 
actual selling price of the tire. Purchasers generally, if they knew the 
amount of the reduction, would not be influenced sufficiently thereby to 
cause them to purchase the tire at the reduced price.

    (d) Representations of specific price reductions and savings. (1) 
Advertisements which offer a specified amount or percentage of price 
reduction or savings should not be used where there is no determinable 
regular selling price, whether it be the advertiser's former price or 
the retail price in the area.
    (2) The lack of a determinable actual selling price does not 
preclude all ``sale'' advertising. For example, if a dealer desires to 
offer a tire at a price which represents a significant reduction from 
the lowest price in the range of prices at which he has actually sold 
the tire in the recent regular course of his business, it would not be 
deceptive to advertise the tire with such representations as ``Sale 
Priced,'' ``Reduced'' or ``Save.''
    (3) However, an advertiser is not precluded from offering specific 
savings from the lowest price at which he has actually sold tires, 
provided that the advertising clearly states that the offered savings 
are a reduction from the lowest previous selling price and not from the 
advertiser's regular selling price.
    (e) No trade-in prices. (1) The most common device used in 
advertising is to offer a purported reduction or savings from a so-
called ``no trade-in'' price. Prospective purchasers are entitled to 
believe this to mean that they would realize a savings from the price 
they would have had to pay for the tire prior to the ``Sale,'' either in 
cash or in cash plus the fair value of a traded-in tire. If this is not 
true, purchasers are deceived. Where a significant number of sales in 
relation to a seller's total sales is not made at the so-called ``no 
trade-in'' price and such price appreciably exceeds the price purchasers 
would normally pay the seller (including the fair value of any trade-
in), use of the price as a basis for claiming a reduction or savings 
would be deceptive and contrary to this part.
    (2) Representations of high trade-in allowances are sometimes used 
in combination with fictitious ``no trade-in'' prices to deceive 
purchasers. These may take the form of direct representations that a 
specified amount (usually significantly higher than the value of the 
tire carcass) will be allowed for a trade-in tire, or, representations 
of specific savings in the purchase of a new tire when a tire is traded 
in during a ``sale.'' In either case, the purchaser is given the 
illusion of a bargain in the guise of a high trade-in allowance

[[Page 163]]

which he does not in fact receive if the amount of the allowance is 
deducted from a fictitiously high ``no trade-in'' price.

    Example 1. An advertisement offers a 25 percent reduction during a 
May tire sale. The body of the advertisement sets forth a ``no trade-
in'' price as the price from which the represented 25 percent reduction 
is made. However, such price represents the price at which only 15 
percent of the advertiser's total sales were made and which was 
appreciably higher than the price at which the tire usually sold with a 
trade-in even with the addition of an amount representing a reasonable, 
bona fide trade-in allowance. Use of the ``no trade-in'' price in the 
advertisement is deceptive.
    Example 2. Dealer D advertises, ``Now Get $4 to $10 Per Tire Trade-
In Allowance'' in connection with the sale of a certain tire. Dealer D 
has regularly sold the tire for $12 to customers having a good 
recappable tire to offer in trade. During the regular course of Dealer 
D's business he has granted allowances ranging from 50 cents to $3, 
depending upon the condition of the tire taken in trade. During the 
advertised sale, however, Dealer D sells all of the tires at the 
manufacturer's suggested ``no trade-in'' price of $22 and deducts from 
that price the inflated trade-in allowances. Under the circumstances, 
the advertisement would be deceptive. Dealer D has not granted the 
allowances in connection with his regular selling price but has used 
instead the fictitious ``no trade-in'' price as a basis for offering the 
inflated allowances. The consumer has been led to believe that his old 
tire is worth far more than its actual value and Dealer D receives what 
has been his regular selling price or, in some instances, an amount in 
excess of the regular price, depending upon the allowance granted.

    (f) Combination offers. (1) Frequent use is made in the tire market 
of purported bargain advertising which offers ``free'' or at a 
represented reduced price a tire, some other article of merchandise or a 
service, with the purchase of one or more tires at a specified price. 
The following are typical examples of this type of offer:

Buy 3, get four at no additional cost.
Buy one tire at $----, get second tire at 50% off.
Get a wheel free with purchase of each snow tire.
Free wheel alignment with purchase of two new tires.


Such advertising is understood by purchasers to mean that the price 
charged by the advertiser for the initial tire or tires to be purchased 
is the price at which they have been regularly sold by the advertiser 
for a reasonably substantial period of time prior to the sale, and that 
the amount of the purported reduction or the value of the so-called 
``free'' article or service represents actual savings. If the price of 
the tires to be purchased is not the advertiser's regular selling price, 
purchasers are deceived.

    Example. Dealer E advertises ``2nd Tire \1/2\ Off When You Buy First 
Tire At Price Listed Below--No Trade-In Needed!'' In the body of the 
advertisement the first tire is listed as costing $25.15 and the second 
tire $12.57. The figure listed as the price for the first tire is not 
Dealer E's regular selling price, but the manufacturer's suggested ``no 
trade-in'' price. E's regular selling price prior to the so-called sale 
had been $18.85 per tire. Under the circumstances, the ``\1/2\ Off'' 
offer would be deceptive. The basis for the advertised offer is not the 
advertiser's actual selling price for the tire. While consumers are led 
to believe that they are being afforded substantial savings by 
purchasing a second tire, in fact they are paying Dealer E's regular 
selling price for two tires.

    (g) Federal Excise Tax. Since the Federal Excise Tax on tires is 
assessed on the manufacturer and is based on the weight of the materials 
used and not the retail selling price, the tax should be included in the 
price quoted for a particular tire, or the amount of the tax set out in 
immediate conjunction with the tire price. For example, assuming the tax 
on a particular tire to be $1 and the advertised selling price $9.95, 
the price should be stated as ``$10.95'' or ``$9.95 plus $1 Federal 
Excise Tax'' and not ``$9.95 plus Federal Excise Tax.''
    (h) Advertising furnished by tire manufacturers. It is the practice 
of some tire manufacturers to supply advertising to independent as well 
as to wholly owned retail outlets in local trade areas. A tire 
manufacturer providing advertising material to be used in local trade 
areas by either wholly owned or independent outlets is responsible for 
the representations made in such advertising and should base price and 
savings claims on conditions actually existing in the particular areas. 
In view of price fluctuations at the local level, the general 
dissemination (i.e.,

[[Page 164]]

in more than one trade area) to independent retail outlets of 
advertising material containing stated prices or reduction claims 
results in deception \1\ and is, accordingly, contrary to this part. 
[Guide 15]
---------------------------------------------------------------------------

    \1\ This part does not deal with the question of whether such 
practice may be improper as contributing to unlawful restraints of trade 
connected with the enforcement of the Antitrust Laws and the Federal 
Trade Commission Act.
---------------------------------------------------------------------------



Sec.  228.16  Guarantees.

    (a) In general, any advertising containing a guarantee 
representation shall clearly and conspicuously disclose:
    (1) The nature and extent of the guarantee. (i) The general nature 
of the guarantee should be disclosed. If the guarantee is, for example, 
against defects in material or workmanship, this should be clearly 
revealed.
    (ii) Disclosure should be made of any material conditions or 
limitations in the guarantee. This would include any limitation as to 
the duration of a guarantee, whether stated in terms of treadwear, time, 
mileage, or otherwise. Exclusion of tire punctures also would constitute 
a material limitation. If the guarantor's performance is conditioned on 
the return of the tire to the dealer who made the original sale, this 
fact should be revealed.
    (iii) When a tire is represented as ``guaranteed for life'' or as 
having a ``lifetime guarantee,'' the meaning of the term life or 
lifetime should be explained.
    (iv) Guarantees which under normal conditions are impractical of 
fulfillment or for such a period of time or number of miles as to 
mislead purchasers into the belief the tires so guaranteed have a 
greater degree of serviceability or durability than is true in fact, 
should not be used.
    (2) The manner in which the guarantor will perform. This consists 
generally of a statement of what the guarantor undertakes to do under 
the guarantee. Types of performance would be repair of the tire, refund 
of purchase price or replacement of the tire. If the guarantor has an 
option as to the manner of the performance, this should be expressly 
stated.
    (3) The identity of the guarantor. The identity of the guarantor 
should be clearly revealed in all advertising, as well as in any 
documents evidencing the guarantee. Confusion of purchasers often occurs 
when it is not clear whether the manufacturer or the retailer is the 
guarantor.
    (4) Pro rata adjustment of guarantees--(i) Disclosure in 
advertising. Many guarantees provide that in the event of tire failure 
during the guarantee period a credit will be allowed on the purchase 
price of a replacement tire, the amount of the credit being in 
proportion to the treadwear or time remaining under the guarantee. All 
advertising of the guarantee should clearly disclose the pro rata nature 
of the guarantee and the price basis upon which adjustments will be 
made.
    (ii) Price basis for adjustments. Usually under this type of 
guarantee the same predetermined amount is used as a basis for the 
prorated credit and the purchase price of the replacement tire. If this 
so-called ``adjustment'' price is not the actual selling price but is an 
artificial, inflated price the purchaser does not receive the full value 
of his guarantee. This is illustrated by the following example:

    ``A'' purchases a tire which is represented as being guaranteed for 
the life of the tread. After 75 percent of the tread is worn, the tire 
fails. The dealer from whom ``A'' seeks an adjustment under his 
guarantee is currently selling the tire for $15 but the ``adjustment'' 
price of the tire is $20. ``A'' receives a credit of 25 percent or $5 
toward the price of the replacement tire. This credit is applied not on 
the actual selling price but on the artificial ``adjustment'' price of 
$20. Thus, ``A'' pays $15 for the new tire which is the current selling 
price of the tire.


Under the facts described in this illustration the guarantee was 
worthless as the purchaser could have purchased a new tire at the same 
price without a guarantee. If 50 percent of the tread remained when the 
adjustment was made, the purchaser would have received a credit of $10 
toward the $20 replacement price. He must still pay $10 for a 
replacement tire. Had the adjustment been made on the basis of the 
actual selling price he would have obtained a new tire for $7.50. Thus, 
while deriving some value from his guarantee

[[Page 165]]

he did not receive the value he had reason to expect under the 
guarantee.
    (b) Accordingly, to avoid deception of purchasers as to the value of 
guarantees, adjustments should be made on the basis of a price which 
realistically reflects the actual selling price of the tire. The 
following would be considered appropriate price bases for making 
guarantee adjustments:
    (1) The original purchase price of the guaranteed tire; or
    (2) The adjusting dealer's actual current selling price at the time 
of adjustment; or
    (3) A predetermined price which fairly represents the actual selling 
price of the tire.

Whenever an advertisement for tires includes reference to a guarantee, 
the advertisement should also disclose, clearly and conspicuously, the 
price basis on which adjustments will be made. Such disclosure of the 
price basis for adjustments should be in terms of actual purchase or 
selling price, e.g., original purchase price, adjusting dealer's current 
selling price, etc. A mere reference to a guarantor's ``adjustment 
price,'' for example, would not satisfy this disclosure requirement. In 
addition, written material disclosing the basis for adjustments should 
be made available to prospective purchasers at the point of sale, and if 
the third method of adjustment is chosen, such written material should 
include the actual price on which guarantee adjustments will be made. 
[Guide 16]



Sec.  228.17  Safety or performance features.

    Absolute terms such as ``skidproof,'' ``blowout proof,'' ``blow 
proof,'' ``puncture proof'' should not be unqualifiedly used unless the 
product so described affords complete and absolute protection from 
skidding, blowouts, or punctures, as the case may be, under any and all 
driving conditions. [Guide 17]



Sec.  228.18  Other claims and representations.

    (a) No claim or representation should be made concerning an industry 
product which directly, by implication, or by failure to adequately 
disclose additional relevant information, has the capacity or tendency 
or effect of deceiving purchasers or prospective purchasers in any 
material respect. This prohibition includes, but is not limited to, 
representations or claims relating to the construction, durability, 
safety, strength, condition or life expectancy of such products.
    (b) Also included among the prohibitions of this section are claims 
or representations by members of this industry or by distributors of any 
component parts of materials used in the manufacture of industry 
products, concerning the merits or comparative merits (as to strength, 
safety, cooler running, wear, or resistance to shock, heat, moisture, 
etc.) of such products, components or materials, which are not true in 
fact or which are otherwise false or misleading. [Guide 18]



Sec.  228.19  Snow tire advertising.

    Many manufacturers are now offering winter tread tires with metal 
spikes. Certain States, or other jurisdictions, however, prohibit the 
use of such tires because of possible road damage. Accordingly, in the 
advertising of such products, a clear and conspicuous statement should 
be made that the use of such tires is illegal in certain States or 
jurisdictions. Further, when such tires are locally advertised in areas 
where their use is prohibited, a clear and conspicuous statement to this 
effect must be included. [Guide 19]



PART 233_GUIDES AGAINST DECEPTIVE PRICING--Table of Contents




Sec.
233.1 Former price comparisons.
233.2 Retail price comparisons; comparable value comparisons.
233.3 Advertising retail prices which have been established or suggested 
          by manufacturers (or other nonretail distributors).
233.4 Bargain offers based upon the purchase of other merchandise.
233.5 Miscellaneous price comparisons.

    Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C. 45, 
46.

    Source: 32 FR 15534, Nov. 8, 1967, unless otherwise noted.



Sec.  233.1  Former price comparisons.

    (a) One of the most commonly used forms of bargain advertising is to 
offer

[[Page 166]]

a reduction from the advertiser's own former price for an article. If 
the former price is the actual, bona fide price at which the article was 
offered to the public on a regular basis for a reasonably substantial 
period of time, it provides a legitimate basis for the advertising of a 
price comparison. Where the former price is genuine, the bargain being 
advertised is a true one. If, on the other hand, the former price being 
advertised is not bona fide but fictitious--for example, where an 
artificial, inflated price was established for the purpose of enabling 
the subsequent offer of a large reduction--the ``bargain'' being 
advertised is a false one; the purchaser is not receiving the unusual 
value he expects. In such a case, the ``reduced'' price is, in reality, 
probably just the seller's regular price.
    (b) A former price is not necessarily fictitious merely because no 
sales at the advertised price were made. The advertiser should be 
especially careful, however, in such a case, that the price is one at 
which the product was openly and actively offered for sale, for a 
reasonably substantial period of time, in the recent, regular course of 
his business, honestly and in good faith--and, of course, not for the 
purpose of establishing a fictitious higher price on which a deceptive 
comparison might be based. And the advertiser should scrupulously avoid 
any implication that a former price is a selling, not an asking price 
(for example, by use of such language as, ``Formerly sold at $------''), 
unless substantial sales at that price were actually made.
    (c) The following is an example of a price comparison based on a 
fictitious former price. John Doe is a retailer of Brand X fountain 
pens, which cost him $5 each. His usual markup is 50 percent over cost; 
that is, his regular retail price is $7.50. In order subsequently to 
offer an unusual ``bargain'', Doe begins offering Brand X at $10 per 
pen. He realizes that he will be able to sell no, or very few, pens at 
this inflated price. But he doesn't care, for he maintains that price 
for only a few days. Then he ``cuts'' the price to its usual level--
$7.50--and advertises: ``Terrific Bargain: X Pens, Were $10, Now Only 
$7.50!'' This is obviously a false claim. The advertised ``bargain'' is 
not genuine.
    (d) Other illustrations of fictitious price comparisons could be 
given. An advertiser might use a price at which he never offered the 
article at all; he might feature a price which was not used in the 
regular course of business, or which was not used in the recent past but 
at some remote period in the past, without making disclosure of that 
fact; he might use a price that was not openly offered to the public, or 
that was not maintained for a reasonable length of time, but was 
immediately reduced.
    (e) If the former price is set forth in the advertisement, whether 
accompanied or not by descriptive terminology such as ``Regularly,'' 
``Usually,'' ``Formerly,'' etc., the advertiser should make certain that 
the former price is not a fictitious one. If the former price, or the 
amount or percentage of reduction, is not stated in the advertisement, 
as when the ad merely states, ``Sale,'' the advertiser must take care 
that the amount of reduction is not so insignificant as to be 
meaningless. It should be sufficiently large that the consumer, if he 
knew what it was, would believe that a genuine bargain or saving was 
being offered. An advertiser who claims that an item has been ``Reduced 
to $9.99,'' when the former price was $10, is misleading the consumer, 
who will understand the claim to mean that a much greater, and not 
merely nominal, reduction was being offered. [Guide I]



Sec.  233.2  Retail price comparisons; comparable value comparisons.

    (a) Another commonly used form of bargain advertising is to offer 
goods at prices lower than those being charged by others for the same 
merchandise in the advertiser's trade area (the area in which he does 
business). This may be done either on a temporary or a permanent basis, 
but in either case the advertised higher price must be based upon fact, 
and not be fictitious or misleading. Whenever an advertiser represents 
that he is selling below the prices being charged in his area for a 
particular article, he should be reasonably certain that the higher 
price he advertises does not appreciably exceed

[[Page 167]]

the price at which substantial sales of the article are being made in 
the area--that is, a sufficient number of sales so that a consumer would 
consider a reduction from the price to represent a genuine bargain or 
saving. Expressed another way, if a number of the principal retail 
outlets in the area are regularly selling Brand X fountain pens at $10, 
it is not dishonest for retailer Doe to advertise: ``Brand X Pens, Price 
Elsewhere $10, Our Price $7.50''.
    (b) The following example, however, illustrates a misleading use of 
this advertising technique. Retailer Doe advertises Brand X pens as 
having a ``Retail Value $15.00, My Price $7.50,'' when the fact is that 
only a few small suburban outlets in the area charge $15. All of the 
larger outlets located in and around the main shopping areas charge 
$7.50, or slightly more or less. The advertisement here would be 
deceptive, since the price charged by the small suburban outlets would 
have no real significance to Doe's customers, to whom the advertisement 
of ``Retail Value $15.00'' would suggest a prevailing, and not merely an 
isolated and unrepresentative, price in the area in which they shop.
    (c) A closely related form of bargain advertising is to offer a 
reduction from the prices being charged either by the advertiser or by 
others in the advertiser's trade area for other merchandise of like 
grade and quality--in other words, comparable or competing merchandise--
to that being advertised. Such advertising can serve a useful and 
legitimate purpose when it is made clear to the consumer that a 
comparison is being made with other merchandise and the other 
merchandise is, in fact, of essentially similar quality and obtainable 
in the area. The advertiser should, however, be reasonably certain, just 
as in the case of comparisons involving the same merchandise, that the 
price advertised as being the price of comparable merchandise does not 
exceed the price at which such merchandise is being offered by 
representative retail outlets in the area. For example, retailer Doe 
advertises Brand X pen as having ``Comparable Value $15.00''. Unless a 
reasonable number of the principal outlets in the area are offering 
Brand Y, an essentially similar pen, for that price, this advertisement 
would be deceptive. [Guide II]



Sec.  233.3  Advertising retail prices which have been established or 
suggested by manufacturers (or other nonretail distributors).

    (a) Many members of the purchasing public believe that a 
manufacturer's list price, or suggested retail price, is the price at 
which an article is generally sold. Therefore, if a reduction from this 
price is advertised, many people will believe that they are being 
offered a genuine bargain. To the extent that list or suggested retail 
prices do not in fact correspond to prices at which a substantial number 
of sales of the article in question are made, the advertisement of a 
reduction may mislead the consumer.
    (b) There are many methods by which manufacturers' suggested retail 
or list prices are advertised: Large scale (often nationwide) mass-media 
advertising by the manufacturer himself; preticketing by the 
manufacturer; direct mail advertising; distribution of promotional 
material or price lists designed for display to the public. The 
mechanics used are not of the essence. This part is concerned with any 
means employed for placing such prices before the consuming public.
    (c) There would be little problem of deception in this area if all 
products were invariably sold at the retail price set by the 
manufacturer. However, the widespread failure to observe manufacturers' 
suggested or list prices, and the advent of retail discounting on a wide 
scale, have seriously undermined the dependability of list prices as 
indicators of the exact prices at which articles are in fact generally 
sold at retail. Changing competitive conditions have created a more 
acute problem of deception than may have existed previously. Today, only 
in the rare case are all sales of an article at the manufacturer's 
suggested retail or list price.
    (d) But this does not mean that all list prices are fictitious and 
all offers of reductions from list, therefore, deceptive. Typically, a 
list price is a price at which articles are sold, if not everywhere, 
then at least in the principal retail outlets which do not conduct their 
business on a discount basis.

[[Page 168]]

It will not be deemed fictitious if it is the price at which substantial 
(that is, not isolated or insignificant) sales are made in the 
advertiser's trade area (the area in which he does business). 
Conversely, if the list price is significantly in excess of the highest 
price at which substantial sales in the trade area are made, there is a 
clear and serious danger of the consumer being misled by an advertised 
reduction from this price.
    (e) This general principle applies whether the advertiser is a 
national or regional manufacturer (or other non-retail distributor), a 
mail-order or catalog distributor who deals directly with the consuming 
public, or a local retailer. But certain differences in the 
responsibility of these various types of businessmen should be noted. A 
retailer competing in a local area has at least a general knowledge of 
the prices being charged in his area. Therefore, before advertising a 
manufacturer's list price as a basis for comparison with his own lower 
price, the retailer should ascertain whether the list price is in fact 
the price regularly charged by principal outlets in his area.
    (f) In other words, a retailer who advertises a manufacturer's or 
distributor's suggested retail price should be careful to avoid creating 
a false impression that he is offering a reduction from the price at 
which the product is generally sold in his trade area. If a number of 
the principal retail outlets in the area are regularly engaged in making 
sales at the manufacturer's suggested price, that price may be used in 
advertising by one who is selling at a lower price. If, however, the 
list price is being followed only by, for example, small suburban 
stores, house-to-house canvassers, and credit houses, accounting for 
only an insubstantial volume of sales in the area, advertising of the 
list price would be deceptive.
    (g) On the other hand, a manufacturer or other distributor who does 
business on a large regional or national scale cannot be required to 
police or investigate in detail the prevailing prices of his articles 
throughout so large a trade area. If he advertises or disseminates a 
list or preticketed price in good faith (i.e., as an honest estimate of 
the actual retail price) which does not appreciably exceed the highest 
price at which substantial sales are made in his trade area, he will not 
be chargeable with having engaged in a deceptive practice. Consider the 
following example:
    (h) Manufacturer Roe, who makes Brand X pens and sells them 
throughout the United States, advertises his pen in a national magazine 
as having a ``Suggested Retail Price $10,'' a price determined on the 
basis of a market survey. In a substantial number of representative 
communities, the principal retail outlets are selling the product at 
this price in the regular course of business and in substantial volume. 
Roe would not be considered to have advertised a fictitious ``suggested 
retail price.'' If retailer Doe does business in one of these 
communities, he would not be guilty of a deceptive practice by 
advertising, ``Brand X Pens, Manufacturer's Suggested Retail Price, $10, 
Our Price, $7.50.''
    (i) It bears repeating that the manufacturer, distributor or 
retailer must in every case act honestly and in good faith in 
advertising a list price, and not with the intention of establishing a 
basis, or creating an instrumentality, for a deceptive comparison in any 
local or other trade area. For instance, a manufacturer may not affix 
price tickets containing inflated prices as an accommodation to 
particular retailers who intend to use such prices as the basis for 
advertising fictitious price reductions. [Guide III]



Sec.  233.4  Bargain offers based upon the purchase of other merchandise.

    (a) Frequently, advertisers choose to offer bargains in the form of 
additional merchandise to be given a customer on the condition that he 
purchase a particular article at the price usually offered by the 
advertiser. The forms which such offers may take are numerous and 
varied, yet all have essentially the same purpose and effect. 
Representative of the language frequently employed in such offers are 
``Free,'' ``Buy One--Get One Free,'' ``2-For-1 Sale,'' ``Half Price 
Sale,'' ``1[cent] Sale,'' ``50% Off,'' etc. Literally, of course, the 
seller is not offering anything ``free'' (i.e., an unconditional gift), 
or \1/2\ free, or for only 1[cent], when he makes such an offer, since 
the purchaser is required to

[[Page 169]]

purchase an article in order to receive the ``free'' or ``1[cent]'' 
item. It is important, therefore, that where such a form of offer is 
used, care be taken not to mislead the consumer.
    (b) Where the seller, in making such an offer, increases his regular 
price of the article required to be bought, or decreases the quantity 
and quality of that article, or otherwise attaches strings (other than 
the basic condition that the article be purchased in order for the 
purchaser to be entitled to the ``free'' or ``1[cent]'' additional 
merchandise) to the offer, the consumer may be deceived.
    (c) Accordingly, whenever a ``free,'' ``2-for-1,'' ``half price 
sale,'' ``1[cent] sale,'' ``50% off'' or similar type of offer is made, 
all the terms and conditions of the offer should be made clear at the 
outset. [Guide IV]



Sec.  233.5  Miscellaneous price comparisons.

    The practices covered in the provisions set forth above represent 
the most frequently employed forms of bargain advertising. However, 
there are many variations which appear from time to time and which are, 
in the main, controlled by the same general principles. For example, 
retailers should not advertise a retail price as a ``wholesale'' price. 
They should not represent that they are selling at ``factory'' prices 
when they are not selling at the prices paid by those purchasing 
directly from the manufacturer. They should not offer seconds or 
imperfect or irregular merchandise at a reduced price without disclosing 
that the higher comparative price refers to the price of the merchandise 
if perfect. They should not offer an advance sale under circumstances 
where they do not in good faith expect to increase the price at a later 
date, or make a ``limited'' offer which, in fact, is not limited. In all 
of these situations, as well as in others too numerous to mention, 
advertisers should make certain that the bargain offer is genuine and 
truthful. Doing so will serve their own interest as well as that of the 
public. [Guide V]



PART 238_GUIDES AGAINST BAIT ADVERTISING--Table of Contents




Sec.
238.0 Bait advertising defined.
238.1 Bait advertisement.
238.2 Initial offer.
238.3 Discouragement of purchase of advertised merchandise.
238.4 Switch after sale.

    Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C. 45, 
46.

    Source: 32 FR 15540, Nov. 8, 1967, unless otherwise noted.



Sec.  238.0  Bait advertising defined. \1\
---------------------------------------------------------------------------

    \1\ For the purpose of this part ``advertising'' includes any form 
of public notice however disseminated or utilized.
---------------------------------------------------------------------------

    Bait advertising is an alluring but insincere offer to sell a 
product or service which the advertiser in truth does not intend or want 
to sell. Its purpose is to switch consumers from buying the advertised 
merchandise, in order to sell something else, usually at a higher price 
or on a basis more advantageous to the advertiser. The primary aim of a 
bait advertisement is to obtain leads as to persons interested in buying 
merchandise of the type so advertised.



Sec.  238.1  Bait advertisement.

    No advertisement containing an offer to sell a product should be 
published when the offer is not a bona fide effort to sell the 
advertised product. [Guide 1]



Sec.  238.2  Initial offer.

    (a) No statement or illustration should be used in any advertisement 
which creates a false impression of the grade, quality, make, value, 
currency of model, size, color, usability, or origin of the product 
offered, or which may otherwise misrepresent the product in such a 
manner that later, on disclosure of the true facts, the purchaser may be 
switched from the advertised product to another.
    (b) Even though the true facts are subsequently made known to the 
buyer, the law is violated if the first contact or interview is secured 
by deception. [Guide 2]

[[Page 170]]



Sec.  238.3  Discouragement of purchase of advertised merchandise.

    No act or practice should be engaged in by an advertiser to 
discourage the purchase of the advertised merchandise as part of a bait 
scheme to sell other merchandise. Among acts or practices which will be 
considered in determining if an advertisement is a bona fide offer are:
    (a) The refusal to show, demonstrate, or sell the product offered in 
accordance with the terms of the offer,
    (b) The disparagement by acts or words of the advertised product or 
the disparagement of the guarantee, credit terms, availability of 
service, repairs or parts, or in any other respect, in connection with 
it,
    (c) The failure to have available at all outlets listed in the 
advertisement a sufficient quantity of the advertised product to meet 
reasonably anticipated demands, unless the advertisement clearly and 
adequately discloses that supply is limited and/or the merchandise is 
available only at designated outlets,
    (d) The refusal to take orders for the advertised merchandise to be 
delivered within a reasonable period of time,
    (e) The showing or demonstrating of a product which is defective, 
unusable or impractical for the purpose represented or implied in the 
advertisement,
    (f) Use of a sales plan or method of compensation for salesmen or 
penalizing salesmen, designed to prevent or discourage them from selling 
the advertised product. [Guide 3]



Sec.  238.4  Switch after sale.

    No practice should be pursued by an advertiser, in the event of sale 
of the advertised product, of ``unselling'' with the intent and purpose 
of selling other merchandise in its stead. Among acts or practices which 
will be considered in determining if the initial sale was in good faith, 
and not a strategem to sell other merchandise, are:
    (a) Accepting a deposit for the advertised product, then switching 
the purchaser to a higher-priced product,
    (b) Failure to make delivery of the advertised product within a 
reasonable time or to make a refund,
    (c) Disparagement by acts or words of the advertised product, or the 
disparagement of the guarantee, credit terms, availability of service, 
repairs, or in any other respect, in connection with it,
    (d) The delivery of the advertised product which is defective, 
unusable or impractical for the purpose represented or implied in the 
advertisement. [Guide 4]

    Note: Sales of advertised merchandise. Sales of the advertised 
merchandise do not preclude the existence of a bait and switch scheme. 
It has been determined that, on occasions, this is a mere incidental 
byproduct of the fundamental plan and is intended to provide an aura of 
legitimacy to the overall operation.



PART 239_GUIDES FOR THE ADVERTISING OF WARRANTIES AND GUARANTEES--Table of Contents




Sec.
239.1 Purpose and scope of the guides.
239.2 Disclosures in warranty or guarantee advertising.
239.3 ``Satisfaction Guarantees'' and similar representations in 
          advertising; disclosure in advertising that mentions 
          ``satisfaction guarantees'' or similar representations.
239.4 ``Lifetime'' and similar representations.
239.5 Performance of warranties or guarantees.

    Authority: Secs. 5, 6, 38 Stat. 719 as amended, 721; 15 U.S.C. 45, 
46.

    Source: 50 FR 18470, May 1, 1985, unless otherwise noted.



Sec.  239.1  Purpose and scope of the guides.

    The Guides for the Advertising of Warranties and Guarantees are 
intended to help advertisers avoid unfair or deceptive practices in the 
advertising of warranties or guarantees. The Guides are based upon 
Commission cases, and reflect changes in circumstances brought about by 
the Magnuson-Moss Warranty Act (15 U.S.C. 2301 et seq.) and the FTC 
Rules promulgated pursuant to the Act (16 CFR parts 701 and 702). The 
Guides do not purport to anticipate all possible unfair or deceptive 
acts or practices in

[[Page 171]]

the advertising of warranties or guarantees and the Guides should not be 
interpreted to limit the Commission's authority to proceed against such 
acts or practices under section 5 of the Federal Trade Commission Act. 
The Commission may bring an action under section 5 against any 
advertiser who misrepresents the product or service offered, who 
misrepresents the terms or conditions of the warranty offered, or who 
employs other deceptive or unfair means.
    Section 239.2 of the Guides applies only to advertisements for 
written warranties on consumer products, as ``written warranty'' and 
``consumer product'' are defined in the Magnuson-Moss Warranty Act, 15 
U.S.C. 2301, that are covered by the Rule on Pre-Sale Availability or 
Written Warranty Terms, 16 CFR part 702. The other sections of the 
Guides apply to the advertising of any warranty or guarantee.

[50 FR 18470, May 1, 1985; 50 FR 20899, May 21, 1985]



Sec.  239.2  Disclosures in warranty or guarantee advertising.

    (a) If an advertisement mentions a warranty or guarantee that is 
offered on the advertised product, the advertisement should disclose, 
with such clarity and prominence as will be noticed and understood by 
prospective purchasers, that prior to sale, at the place where the 
product is sold, prospective purchasers can see the written warranty or 
guarantee for complete details of the warranty coverage. \1\
---------------------------------------------------------------------------

    \1\ In television advertising, the Commission will regard any 
disclosure of the pre-sale availability of warranties as complying with 
this Guide if the advertisement makes the necessary disclosure 
simultaneously with or immediately following the warranty claim and the 
disclosure is made in the audio portion, or, if in the video portion, it 
remains on the screen for at least five seconds.

    Examples: The following are examples of disclosures sufficient to 
convey to prospective purchasers that, prior to sale, at the place where 
the product is sold, they can see the written warranty or guarantee for 
complete details of the warranty coverage. These examples are for both 
print and broadcast advertising. These examples are illustrative, not 
exhaustive. In each example, the portion of the advertisement that 
mentions the warranty or guarantee is in regular type and the disclosure 
is in italics.
    A. ``The XYZ washing machine is backed by our limited 1 year 
warranty. For complete details, see our warranty at a dealer near you.''
    B. ``The XYZ bicycle is warranted for 5 years. Some restrictions may 
apply. See a copy of our warranty wherever XYZ products are sold.''
    C. ``We offer the best guarantee in the business. Read the details 
and compare wherever our fine products are sold.''
    D. ``See our full 2 year warranty at the store nearest you.''
    E. ``Don't take our word--take our warranty. See our limited 2 year 
warranty where you shop.''

    (b) If an advertisement in any catalogue, or in any other 
solicitation \2\ for mail order sales or for telephone order sales 
mentions a warranty or guarantee that is offered on the advertised 
product, the advertisement should disclose, with such clarity and 
prominence as will be noticed and understood by prospective purchasers, 
that prospective purchasers can obtain complete details of the written 
warranty or guarantee free from the seller upon specific written request 
or from the catalogue or other solicitation (whichever is applicable).
---------------------------------------------------------------------------

    \2\ See note 1.

    Examples: The following are examples of disclosures sufficient to 
convey to consumers how they can obtain complete details of the written 
warranty or guarantee prior to placing a mail or telephone order. These 
examples are illustrative, not exhaustive. In each example, the portion 
of the advertisement that mentions the warranty or guarantee is in 
regular typeface and the disclosure is in italics.
    A. ``ABC quality cutlery is backed by our 10 year warranty. Write to 
us for a free copy at: (address).''
    B. ``ABC power tools are guaranteed. Read about our limited 90 day 
warranty in this catalogue.''
    C. ``Write to us for a free copy of our full warranty. You'll be 
impressed how we stand behind our product.''

[50 FR 20899, May 21, 1985]

[[Page 172]]



Sec.  239.3  ``Satisfaction Guarantees'' and similar representations in 

advertising; disclosure in advertising that mentions ``satisfaction guarantees'' 
or similar representations.

    (a) A seller or manufacturer should use the terms ``Satisfaction 
Guarantee,'' ``Money Back Guarantee,'' ``Free Trial Offer,'' or similar 
representations in advertising only if the seller or manufacturer, as 
the case may be, refunds the full purchase price of the advertised 
product at the purchaser's request.
    (b) An advertisement that mentions a ``Satisfaction Guarantee'' or a 
similar representation should disclose, with such clarity and prominence 
as will be noticed and understood by prospective purchasers, any 
material limitations or conditions that apply to the ``Satisfaction 
Guarantee'' or similar representation.

    Examples: These examples are for both print and broadcast 
advertising. These examples are illustrative, not exhaustive.
    Example A: (In an advertisement mentioning a satisfaction guarantee 
that is conditioned upon return of the unused portion within 30 days) 
``We guarantee your satisfaction. If not completely satisfied with Acme 
Spot Remover, return the unused portion within 30 days for a full 
refund.''
    Example B: (In an advertisement mentioning a money back guarantee 
that is conditioned upon return of the product in its original 
packaging) ``Money Back Guarantee! Just return the ABC watch in its 
original package and ABC will fully refund your money.''



Sec.  239.4  ``Lifetime'' and similar representations.

    If an advertisement uses ``lifetime,'' ``life,'' or similar 
representations to describe the duration of a warranty or guarantee, 
then the advertisement should disclose, with such clarity and prominence 
as will be noticed and understood by prospective purchasers, the life to 
which the representation refers.

    Examples: These examples are for both print and broadcast 
advertising. These examples are illustrative, not exhaustive.
    Example A: (In an advertisement mentioning a lifetime guarantee on 
an automobile muffler where the duration of the guarantee is measured by 
the life of the car in which it is installed) ``Our lifetime guarantee 
on the Whisper Muffler protects you for as long as your car runs--even 
if you sell it, trade it, or give it away!''
    Example B: (In an advertisement mentioning a lifetime guarantee on a 
battery where the duration of the warranty is for as long as the 
original purchaser owns the car in which it was installed) ``Our battery 
is backed by our lifetime guarantee. Good for as long as you own the 
car!''



Sec.  239.5  Performance of warranties or guarantees.

    A seller or manufacturer should advertise that a product is 
warranted or guaranteed only if the seller or manufacturer, as the case 
may be, promptly and fully performs its obligations under the warranty 
or guarantee.



PART 240_GUIDES FOR ADVERTISING ALLOWANCES AND OTHER MERCHANDISING 
PAYMENTS AND SERVICES--Table of Contents




Sec.
240.1 Purpose of the Guides.
240.2 Applicability of the law.
240.3 Definition of seller.
240.4 Definition of customer.
240.5 Definition of competing customers.
240.6 Interstate commerce.
240.7 Services or facilities.
240.8 Need for a plan.
240.9 Proportionally equal terms.
240.10 Availability to all competing customers.
240.11 Wholesaler or third party performance of seller's obligations.
240.12 Checking customer's use of payments.
240.13 Customer's and third party liability.
240.14 Meeting competition.
240.15 Cost justification.

    Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C. 45, 
46; 49 Stat. 1526; 15 U.S.C. 13, as amended.

    Source: 55 FR 33663, Aug. 17, 1990, unless otherwise noted.



Sec.  240.1  Purpose of the Guides.

    The purpose of these Guides is to provide assistance to businesses 
seeking to comply with sections 2 (d) and (e) of the Robinson-Patman Act 
(the ``Act''). The guides are based on the language of the statute, the 
legislative history, administrative and court decisions, and the 
purposes of the Act. Although the Guides are consistent with the case 
law, the Commission has sought to provide guidance in some areas where 
no

[[Page 173]]

definitive guidance is provided by the case law. The Guides are what 
their name implies--guidelines for compliance with the law. They do not 
have the force of law.



Sec.  240.2  Applicability of the law.

    (a) The substantive provisions of section 2 (d) and (e) apply only 
under certain circumstances. Section 2(d) applies only to:
    (1) A seller of products
    (2) Engaged in interstate commerce
    (3) That either directly or through an intermediary
    (4) Pays a customer for promotional services or facilities provided 
by the customer
    (5) In connection with the resale (not the initial sale between the 
seller and the customer) of the seller's products
    (6) Where the customer is in competition with one or more of the 
seller's other customers also engaged in the resale of the seller's 
products of like grade and quality.
    (b) Section 2(e) applies only to:
    (1) A seller of products
    (2) Engaged in interstate commerce
    (3) That either directly or through an intermediary
    (4) Furnishes promotional services or facilities to a customer
    (5) In connection with the resale (not the initial sale between the 
seller and the customer) of the seller's products
    (6) Where the customer is in competition with one or more of the 
seller's other customers also engaged in the resale of the seller's 
products of like grade and quality.
    (c) Additionally, section 5 of the FTC Act may apply to buyers of 
products for resale or to third parties. See Sec.  240.13 of these 
Guides.



Sec.  240.3  Definition of seller.

    Seller includes any person (manufacturer, wholesaler, distributor, 
etc.) who sells products for resale, with or without further processing. 
For example, selling candy to a retailer is a sale for resale without 
processing. Selling corn syrup to a candy manufacturer is a sale for 
resale with processing.



Sec.  240.4  Definition of customer.

    A customer is any person who buys for resale directly from the 
seller, or the seller's agent or broker. In addition, a ``customer'' is 
any buyer of the seller's product for resale who purchases from or 
through a wholesaler or other intermediate reseller. The word 
``customer'' which is used in section 2(d) of the Act includes 
``purchaser'' which is used in section 2(e).

    Note: There may be some exceptions to this general definition of 
``customer.'' For example, the purchaser of distress merchandise would 
not be considered a ``customer'' simply on the basis of such purchase. 
Similarly, a retailer or purchasing solely from other retailers, or 
making sporadic purchases from the seller or one that does not regularly 
sell the seller's product, or that is a type of retail outlet not 
usually selling such products (e.g., a hardware store stocking a few 
isolated food items) will not be considered a ``customer'' of the seller 
unless the seller has been put on notice that such retailer is selling 
its product.
    Example 1: A manufacturer sells to some retailers directly and to 
others through wholesalers. Retailer A purchases the manufacturer's 
product from a wholesaler and resells some of it to Retailer B. Retailer 
A is a customer of the manufacturer. Retailer B is not a customer unless 
the fact that it purchases the manufacturer's product is known to the 
manufacturer.
    Example 2: A manufacturer sells directly to some independent 
retailers, to the headquarters of chains and of retailer-owned 
cooperatives, and to wholesalers. The manufacturer offers promotional 
services or allowances for promotional activity to be performed at the 
retail level. With respect to such services and allowances, the direct-
buying independent retailers, the headquarters of the chains and 
retailer-owned cooperatives, and the wholesaler's independent retailer 
customers are customers of the manufacturer. Individual retail outlets 
of the chains and the members of the retailer-owned cooperatives are not 
customers of the manufacturer.
    Example 3: A seller offers to pay wholesalers to advertise the 
seller's product in the wholesalers' order books or in the wholesalers' 
price lists directed to retailers purchasing from the wholesalers. The 
wholesalers and retailer-owned cooperative headquarters and headquarters 
of other bona-fide buying groups are customers. Retailers are not 
customers for purposes of this promotion.



Sec.  240.5  Definition of competing customers.

    Competing customers are all businesses that compete in the resale of 
the seller's products of like grade and quality

[[Page 174]]

at the same functional level of distribution regardless of whether they 
purchase directly from the seller or through some intermediary.

    Example 1: Manufacturer A, located in Wisconsin and distributing 
shoes nationally, sells shoes to three competing retailers that sell 
only in the Roanoke, Virginia area. Manufacturer A has no other 
customers selling in Roanoke or its vicinity. If Manufacturer A offers 
its promotion to one Roanoke customer, it should include all three, but 
it can limit the promotion to them. The trade area should be drawn to 
include retailers who compete.
    Example 2: A national seller has direct-buying retailing customers 
reselling exclusively within the Baltimore area, and other customers 
within the area purchasing through wholesalers. The seller may lawfully 
engage in a promotional campaign confined to the Baltimore area, 
provided that it affords all of its retailing customers within the area 
the opportunity to participate, including those that purchase through 
wholesalers.
    Example 3: B manufactures and sells a brand of laundry detergent for 
home use. In one metropolitan area, B's detergent is sold by a grocery 
store and a discount department store. If these stores compete with each 
other, any allowance, service or facility that B makes available to the 
grocery store should also be made available on proportionally equal 
terms to the discount department store.



Sec.  240.6  Interstate commerce.

    The term interstate commerce has not been precisely defined in the 
statute. In general, if there is any part of a business which is not 
wholly within one state (for example, sales or deliveries of products, 
their subsequent distribution or purchase, or delivery of supplies or 
raw materials), the business may be subject to sections 2(d) and 2(e) of 
the Act. (The commerce standard for sections 2 (d) and (e) is at least 
as inclusive as the commerce standard for section 2(a).) Sales or 
promotional offers within the District of Columbia and most United 
States possessions are also covered by the Act.



Sec.  240.7  Services or facilities.

    The terms services and facilities have not been exactly defined by 
the statute or in decisions. One requirement, however, is that the 
services or facilities be used primarily to promote the resale of the 
seller's product by the customer. Services or facilities that relate 
primarily to the original sale are covered by section 2(a). The 
following list provides some examples--the list is not exhaustive--of 
promotional services and facilities covered by sections 2 (d) and (e):

Cooperative advertising;
Handbills;
Demonstrators and demonstrations;
Catalogues;
Cabinets;
Displays;
Prizes or merchandise for conducting promotional contests;
Special packaging, or package sizes.



Sec.  240.8  Need for a plan.

    A seller who makes payments or furnishes services that come under 
the Act should do so according to a plan. If there are many competing 
customers to be considered or if the plan is complex, the seller would 
be well advised to put the plan in writing. What the plan should include 
is describe in more detail in the remainder of these Guides. Briefly, 
the plan should make payments or services functionally available to all 
competing customers on proportionally equal terms. (See Sec.  240.9 of 
this part.) Alternative terms and conditions should be made available to 
customers who cannot, in a practical sense, take advantage of some of 
the plan's offerings. The seller should inform competing customers of 
the plans available to them, in time for them to decide whether to 
participate. (See Sec.  240.10 of this part.)



Sec.  240.9  Proportionally equal terms.

    (a) Promotional services and allowances should be made available to 
all competing customers on proportionally equal terms. No single way to 
do this is prescribed by law. Any method that treats competing customers 
on proportionally equal terms may be used. Generally, this can be done 
most easily by basing the payments made or the services furnished on the 
dollar volume or on the quantity of the product purchased during a 
specified period. However, other methods that result in proportionally 
equal allowances and services being offered to all competing customers 
are acceptable.
    (b) When a seller offers more than one type of service, or payments 
for more than one type of service, all the

[[Page 175]]

services or payments should be offered on proportionally equal terms. 
The seller may do this by offering all the payments or services at the 
same rate per unit or amount purchased. Thus, a seller might offer 
promotional allowances of up to 12 cents a case purchased for 
expenditures on either newspaper advertising or handbills.

    Example 1: A seller may offer to pay a specified part (e.g., 50 
percent) of the cost of local advertising up to an amount equal to a 
specified percentage (e.g., 5 percent) of the dollar volume of purchases 
during a specified period of time.
    Example 2: A seller may place in reserve for each customer a 
specified amount of money for each unit purchased, and use it to 
reimburse these customers for the cost of advertising the seller's 
product.
    Example 3: A seller should not provide an allowance or service on a 
basis that has rates graduated with the amount of goods purchased, as, 
for instance, 1 percent of the first $1,000 purchased per month, 2 
percent of the second $1,000 per month, and 3 percent of all over that.
    Example 4: A seller should not identify or feature one or a few 
customers in its own advertising without making the same service 
available on proportionally equal terms to customers competing with the 
identified customer or customers.
    Example 5: A seller who makes employees available or arranges with a 
third party to furnish personnel for purposes of performing work for a 
customer should make the same offer available on proportionally equal 
terms to all other competing customers or offer useable and suitable 
services or allowances on proportionally equal terms to competing 
customers for whom such services are not useable and suitable. \1\
---------------------------------------------------------------------------

    \1\ The discriminatory purchase of display or shelf space, whether 
directly or by means of so-called allowances, may violate the Act, and 
may be considered an unfair method of competition in violation of 
section 5 of the Federal Trade Commission Act.
---------------------------------------------------------------------------

    Example 6: A seller should not offer to pay a straight line rate for 
advertising if such payment results in a discrimination between 
competing customers; e.g., the offer of $1.00 per line for advertising 
in a newspaper that charges competing customers different amounts for 
the same advertising space. The straight line rate is an acceptable 
method for allocating advertising funds if the seller offers small 
retailers that pay more than the lowest newspaper rate an alternative 
that enables them to obtain the same percentage of their advertising 
cost as large retailers. If the $1.00 per line allowance is based on 50 
percent of the newspaper's lowest contract rate of $2.00 per line, the 
seller should offer to pay 50 percent of the newspaper advertising cost 
of smaller retailers that establish, by invoice or otherwise, that they 
paid more than that contract rate.
    Example 7: A seller offers each customer promotional allowances at 
the rate of one dollar for each unit of its product purchased during a 
defined promotional period. If Buyer A purchases 100 units, Buyer B 50 
units, and Buyer C 25 units, the seller maintains proportional equality 
by allowing $100 to Buyer A, $50 to Buyer B, and $25 to Buyer C, to be 
used for the Buyers' expenditures on promotion.



Sec.  240.10  Availability to all competing customers.

    (a) Functional availability:
    (1) The seller should take reasonable steps to ensure that services 
and facilities are useable in a practical sense by all competing 
customers. This may require offering alternative terms and conditions 
under which customers can participate. When a seller provides 
alternatives in order to meet the availability requirement, it should 
take reasonable steps to ensure that the alternatives are proportionally 
equal, and the seller should inform competing customers of the various 
alternative plans.
    (2) The seller should insure that promotional plans or alternatives 
offered to retailers do not bar any competing retailers from 
participation, whether they purchase directly from the seller or through 
a wholesaler or other intermediary.
    (3) When a seller offers to competing customers alternative services 
or allowances that are proportionally equal and at least one such offer 
is useable in a practical sense by all competing customers, and refrains 
from taking steps to prevent customers from participating, it has 
satisfied its obligation to make services and allowances ``functionally 
available'' to all customers. Therefore, the failure of any customer to 
participate in the program does not place the seller in violation of the 
Act.

    Example 1: A manufacturer offers a plan for cooperative advertising 
on radio, TV, or in newspapers of general circulation. Because the 
purchases of some of the manufacturer's customers are too small this 
offer is not useable in a practical sense by them. The manufacturer 
should offer them alternative(s) on

[[Page 176]]

proportionally equal terms that are useable in a practical sense by 
them.
    Example 2: A seller furnishes demonstrators to large department 
store customers. The seller should provide alternatives useable in a 
practical sense on proportionally equal terms to those competing 
customers who cannot use demonstrators. The alternatives may be services 
useable in a practical sense that are furnished by the seller, or 
payments by the seller to customers for their advertising or promotion 
of the seller's product.
    Example 3: A seller offers to pay 75 percent of the cost of 
advertising in daily newspapers, which are the regular advertising media 
of the seller's large or chain store customers, but a lesser amount, 
such as only 50 percent of the cost, or even nothing at all, for 
advertising in semi-weekly, weekly, or other newspapers or media that 
may be used by small retail customers. Such a plan discriminates against 
particular customers or classes of customers. To avoid that 
discrimination, the seller in offering to pay allowances for newspaper 
advertising should offer to pay the same percent of the cost of 
newspaper advertising for all competing customers in a newspaper of the 
customer's choice, or at least in those newspapers that meet the 
requirements for second class mail privileges. While a small customer 
may be offered, as an alternative to advertising in daily newspapers, 
allowances for other media and services such as envelope stuffers, 
handbills, window banners, and the like, the small customer should have 
the choice to use its promotional allowance for advertising similar to 
that available to the larger customers, if it can practicably do so.
    Example 4: A seller offers short term displays of varying sizes, 
including some which are useable by each of its competing customers in a 
practical business sense. The seller requires uniform, reasonable 
certification of performance by each customer. Because they are 
reluctant to process the required paper work, some customers do not 
participate. This fact does not place the seller in violation of the 
functional availability requirement and it is under no obligation to 
provide additional alternatives.

    (b) Notice of available services and allowances: The seller has an 
obligation to take steps reasonably designed to provide notice to 
competing customers of the availability of promotional services and 
allowances. Such notification should include enough details of the offer 
in time to enable customers to make an informed judgment whether to 
participate. When some competing customers do not purchase directly from 
the seller, the seller must take steps reasonably designed to provide 
notice to such indirect customers. Acceptable notification may vary. The 
following is a non-exhaustive list of acceptable methods of 
notification:
    (1) By providing direct notice to customers;
    (2) When a promotion consists of providing retailers with display 
materials, by including the materials within the product shipping 
container;
    (3) By including brochures describing the details of the offer in 
shipping containers;
    (4) By providing information on shipping containers or product 
packages of the availability and essential features of an offer, 
identifying a specific source for further information;
    (5) By placing at reasonable intervals in trade publications of 
general and widespread distribution announcements of the availability 
and essential features of promotional offers, identifying a specific 
source for further information; and
    (6) If the competing customers belong to an identifiable group on a 
specific mailing list, by providing relevant information of promotional 
offers to customers on that list. For example, if a product is sold 
lawfully only under Government license (alcoholic beverages, etc.), the 
seller may inform only its customers holding licenses.
    (c) A seller may contract with intermediaries or other third parties 
to provide notice. See Sec.  240.11.

    Example 1: A seller has a plan for the retail promotion of its 
product in Philadelphia. Some of its retailing customers purchase 
directly and it offers the plan to them. Other Philadelphia retailers 
purchase the seller's product through wholesalers. The seller may use 
the wholesalers to reach the retailing customers that buy through them, 
either by having the wholesalers notify these retailers, or by using the 
wholesalers' customer lists for direct notification by the seller.
    Example 2: A seller that sells on a direct basis to some retailers 
in an area, and to other retailers in the area through wholsesalers, has 
a plan for the promotion of its product at the retail level. If the 
seller directly notifies competing direct purchasing retailers, and 
competing retailers purchasing through the wholesalers, the seller is 
not required to notify its wholesalers.
    Example 3: A seller regularly promotes its product at the retail 
level and during the year has various special promotional offers.

[[Page 177]]

The seller's competing customers include large direct-purchasing 
retailers and smaller retailers that purchase through wholesalers. The 
promotions offered can best be used by the smaller retailers if the 
funds to which they are entitled are pooled and used by the wholesalers 
on their behalf (newspaper advertisements, for example). If retailers 
purchasing through a wholesaler designate that wholesaler as their agent 
for receiving notice of, collecting, and using promotional allowances 
for them, the seller may assume that notice of, and payment under, a 
promotional plan to such wholesaler constitutes notice and payment to 
the retailer. The seller must have a reasonable basis for concluding 
that the retailers have designated the wholesaler as their agent.



Sec.  240.11  Wholesaler or third party performance of seller's obligations.

    A seller may contract with intermediaries, such as wholesalers, 
distributors, or other third parties, to perform all or part of the 
seller's obligations under sections 2 (d) and (e). The use of 
intermediaries does not relieve a seller of its responsibility to comply 
with the law. Therefore, in contracting with an intermediary, a seller 
should ensure that its obligations under the law are in fact fulfilled.



Sec.  240.12  Checking customer's use of payments.

    The seller should take reasonable precautions to see that the 
services the seller is paying for are furnished and that the seller is 
not overpaying for them. The customer should expend the allowance solely 
for the purpose for which it was given. If the seller knows or should 
know that what the seller is paying for or furnishing is not being 
properly used by some customers, the improper payments or services 
should be discontinued.



Sec.  240.13  Customer's and third party liability.

    (a) Customer's liability: Sections 2 (d) and (e) apply to sellers 
and not to customers. However, the Commission may proceed under section 
5 of the Federal Trade Commission Act against a customer who knows, or 
should know, that it is receiving a discriminatory price through 
services or allowances not made available on proportionally equal terms 
to its competitors engaged in the resale of a seller's product. 
Liability for knowingly receiving such a discrimination may result 
whether the discrimination takes place directly through payments or 
services, or indirectly through deductions from purchase invoices or 
other similar means.

    Example 1: A customer should not induce or receive advertising 
allowances for special promotion of the seller's product in connection 
with the customer's anniversary sale or new store opening when the 
customer knows or should know that such allowances, or suitable 
alternatives, are not available on proportionally equal terms to all 
other customers competing with it in the distribution of the seller's 
product.
    Example 2: Frequently the employees of sellers or third parties, 
such as brokers, perform in-store services for their grocery retailer 
customers, such as stocking of shelves, building of displays and 
checking or rotating inventory, etc. A customer operating a retail 
grocery business should not induce or receive such services when the 
customer knows or should know that such services (or usable and suitable 
alternative services) are not available on proportionally equal terms to 
all other customers competing with it in the distribution of the 
seller's product.
    Example 3: Where a customer has entered into a contract, 
understanding, or arrangement for the purchase of advertising with a 
newspaper or other advertising medium that provides for a deferred 
rebate or other reduction in the price of the advertising, the customer 
should advise any seller from whom reimbursement for the advertising is 
claimed that the claimed rate of reimbursement is subject to a deferred 
rebate or other reduction in price. In the event that any rebate or 
adjustment in the price is received, the customer should refund to the 
seller the amount of any excess payment or allowance.
    Example 4: A customer should not induce or receive an allowance in 
excess of that offered in the seller's advertising plan by billing the 
seller at ``vendor rates'' or for any other amount in excess of that 
authorized in the seller's promotional program.

    (b) Third party liability: Third parties, such as advertising media, 
may violate section 5 of the Federal Trade Commission Act through double 
or fictitious rates or billing. An advertising medium, such as a 
newspaper, broadcast station, or printer of catalogues, that publishes a 
rate schedule containing fictitious rates (or rates that are not 
reasonably expected to be applicable to a representative number of 
advertisers), may violate section 5 if the customer uses such deceptive

[[Page 178]]

schedule or invoice for a claim for an advertising allowance, payment or 
credit greater than that to which it would be entitled under the 
seller's promotional offering. Similarly, an advertising medium that 
furnishes a customer with an invoice that does not reflect the 
customer's actual net advertising cost may violate section 5 if the 
customer uses the invoice to obtain larger payments than it is entitled 
to receive.

    Example 1: A newspaper has a ``national'' rate and a lower ``local'' 
rate. A retailer places an advertisement with the newspaper at the local 
rate for a seller's product for which the retailer will seek 
reimbursement under the seller's cooperative advertising plan. The 
newspaper should not send the retailer two bills, one at the national 
rate and another at the local rate actually charged.
    Example 2: A newspaper has several published rates. A large retailer 
has in the past earned the lowest rate available. The newspaper should 
not submit invoices to the retailer showing a high rate by agreement 
between them unless the invoice discloses that the retailer may receive 
a rebate and states the amount (or approximate amount) of the rebate, if 
known, and if not known, the amount of rebate the retailer could 
reasonably anticipate.
    Example 3: A radio station has a flat rate for spot announcements, 
subject to volume discounts. A retailer buys enough spots to qualify for 
the discounts. The station should not submit an invoice to the retailer 
that does not show either the actual net cost or the discount rate.
    Example 4: An advertising agent buys a large volume of newspaper 
advertising space at a low, unpublished negotiated rate. Retailers then 
buy the space from the agent at a rate lower than they could buy this 
space directly from the newspaper. The agent should not furnish the 
retailers invoices showing a rate higher than the retailers actually 
paid for the space.



Sec.  240.14  Meeting competition.

    A seller charged with discrimination in violation of sections 2 (d) 
and (e) may defend its actions by showing that particular payments were 
made or services furnished in good faith to meet equally high payments 
or equivalent services offered or supplied by a competing seller. This 
defense is available with respect to payments or services offered on an 
area-wide basis, to those offered to new as well as old customers, and 
regardless of whether the discrimination has been caused by a decrease 
or an increase in the payments or services offered. A seller must 
reasonably believe that its offers are necessary to meet a competitor's 
offer.



Sec.  240.15  Cost justification.

    It is no defense to a charge of unlawful discrimination in the 
payment of an allowance or the furnishing of a service for a seller to 
show that such payment or service could be justified through savings in 
the cost of manufacture, sale or delivery.



PART 251_GUIDE CONCERNING USE OF THE WORD ``FREE'' AND SIMILAR 
REPRESENTATIONS--Table of Contents






Sec.  251.1  The guide.

    (a) General. (1) The offer of ``Free'' merchandise or service is a 
promotional device frequently used to attract customers. Providing such 
merchandise or service with the purchase of some other article or 
service has often been found to be a useful and valuable marketing tool.
    (2) Because the purchasing public continually searches for the best 
buy, and regards the offer of ``Free'' merchandise or service to be a 
special bargain, all such offers must be made with extreme care so as to 
avoid any possibility that consumers will be misled or deceived. 
Representative of the language frequently used in such offers are 
``Free'', ``Buy 1-Get 1 Free'', ``2-for-1 Sale'', ``50% off with 
purchase of Two'', ``1[cent] Sale'', etc. (Related representations that 
raise many of the same questions include ``---- Cents-Off'', ``Half-
Price Sale'', ``\1/2\ Off'', etc. See the Commission's ``Fair Packaging 
and Labeling Regulation Regarding `Cents-Off' and Guides Against 
Deceptive Pricing.'')
    (b) Meaning of ``Free''. (1) The public understands that, except in 
the case of introductory offers in connection with the sale of a product 
or service (See paragraph (f) of this section), an offer of ``Free'' 
merchandise or service is based upon a regular price for the merchandise 
or service which must be purchased by consumers in order to avail 
themselves of that which is represented to be ``Free''. In other words, 
when the purchaser is told that an article is

[[Page 179]]

``Free'' to him if another article is purchased, the word ``Free'' 
indicates that he is paying nothing for that article and no more than 
the regular price for the other. Thus, a purchaser has a right to 
believe that the merchant will not directly and immediately recover, in 
whole or in part, the cost of the free merchandise or service by marking 
up the price of the article which must be purchased, by the substitution 
of inferior merchandise or service, or otherwise.
    (2) The term regular when used with the term price, means the price, 
in the same quantity, quality and with the same service, at which the 
seller or advertiser of the product or service has openly and actively 
sold the product or service in the geographic market or trade area in 
which he is making a ``Free'' or similar offer in the most recent and 
regular course of business, for a reasonably substantial period of time, 
i.e., a 30-day period. For consumer products or services which fluctuate 
in price, the ``regular'' price shall be the lowest price at which any 
substantial sales were made during the aforesaid 30-day period. Except 
in the case of introductory offers, if no substantial sales were made, 
in fact, at the ``regular'' price, a ``Free'' or similar offer would not 
be proper.
    (c) Disclosure of conditions. When making ``Free'' or similar offers 
all the terms, conditions and obligations upon which receipt and 
retention of the ``Free'' item are contingent should be set forth 
clearly and conspicuously at the outset of the offer so as to leave no 
reasonable probability that the terms of the offer might be 
misunderstood. Stated differently, all of the terms, conditions and 
obligations should appear in close conjunction with the offer of 
``Free'' merchandise or service. For example, disclosure of the terms of 
the offer set forth in a footnote of an advertisement to which reference 
is made by an asterisk or other symbol placed next to the offer, is not 
regarded as making disclosure at the outset. However, mere notice of the 
existence of a ``Free'' offer on the main display panel of a label or 
package is not precluded provided that (1) the notice does not 
constitute an offer or identify the item being offered ``Free'', (2) the 
notice informs the customer of the location, elsewhere on the package or 
label, where the disclosures required by this section may be found, (3) 
no purchase or other such material affirmative act is required in order 
to discover the terms and conditions of the offer, and (4) the notice 
and the offer are not otherwise deceptive.
    (d) Supplier's responsibilities. Nothing in this section should be 
construed as authorizing or condoning the illegal setting or policing of 
retail prices by a supplier. However, if the supplier knows, or should 
know, that a ``Free'' offer he is promoting is not being passed on by a 
reseller, or otherwise is being used by a reseller as an instrumentality 
for deception, it is improper for the supplier to continue to offer the 
product as promoted to such reseller. He should take appropriate steps 
to bring an end to the deception, inlcuding the withdrawal of the 
``Free'' offer.
    (e) Resellers' participation in supplier's offers. Prior to 
advertising a ``Free'' promotion, a supplier should offer the product as 
promoted to all competing resellers as provided for in the Commission's 
``Guides for Advertising Allowances and Other Merchandising Payments and 
Services.'' In advertising the ``Free'' promotion, the supplier should 
identify those areas in which the offer is not available if the 
advertising is likely to be seen in such areas, and should clearly state 
that it is available only through participating resellers, indicating 
the extent of participation by the use of such terms as ``some'', 
``all'', ``a majority'', or ``a few'', as the case may be.
    (f) Introductory offers. (1) No ``Free'' offer should be made in 
connection with the introduction of a new product or service offered for 
sale at a specified price unless the offeror expects, in good faith, to 
discontinue the offer after a limited time and to commence selling the 
product or service promoted, separately, at the same price at which it 
was promoted with the ``Free'' offer.
    (2) In such offers, no representation may be made that the price is 
for one item and that the other is ``Free'' unless the offeror expects, 
in good faith, to discontinue the offer after a limited time and to 
commence selling the

[[Page 180]]

product or service promoted, separately, at the same price at which it 
was promoted with a ``Free'' offer.
    (g) Negotiated sales. If a product or service usually is sold at a 
price arrived at through bargaining, rather than at a regular price, it 
is improper to represent that another product or service is being 
offered ``Free'' with the sale. The same representation is also improper 
where there may be a regular price, but where other material factors 
such as quantity, quality, or size are arrived at through bargaining.
    (h) Frequency of offers. So that a ``Free'' offer will be special 
and meaningful, a single size of a product or a single kind of service 
should not be advertised with a ``Free'' offer in a trade area for more 
than 6 months in any 12-month period. At least 30 days should elapse 
before another such offer is promoted in the same trade area. No more 
than three such offers should be made in the same area in any 12-month 
period. In such period, the offeror's sale in that area of the product 
in the size promoted with a ``Free'' offer should not exceed 50 percent 
of the total volume of his sales of the product, in the same size, in 
the area.
    (i) Similar terms. Offers of ``Free'' merchandise or services which 
may be deceptive for failure to meet the provisions of this section may 
not be corrected by the substitution of such similar words and terms as 
``gift'', ``given without charge'', ``bonus'', or other words or terms 
which tend to convey the impression to the consuming public that an 
article of merchandise or service is ``Free''.

(38 Stat. 717, as amended; 15 U.S.C. 41-58)

[36 FR 21517, Nov. 10, 1971]



PART 254_GUIDES FOR PRIVATE VOCATIONAL AND DISTANCE EDUCATION 
SCHOOLS--Table of Contents




Sec.
254.0 Scope and application.
254.1 Definitions.
254.2 Deceptive trade or business names.
254.3 Misrepresentation of extent or nature of accreditation or 
          approval.
254.4 Misrepresentation of facilities, services, qualifications of 
          staff, status, and employment prospects for students after 
          training.
254.5 Misrepresentations of enrollment qualifications or limitations.
254.6 Deceptive use of diplomas, degrees, or certificates.
254.7 Deceptive sales practices.

    Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.



Sec.  254.0  Scope and application.

    (a) The Guides in this part apply to persons, firms, corporations, 
or organizations engaged in the operation of privately owned schools 
that offer resident or distance courses, training, or instruction 
purporting to prepare or qualify individuals for employment in any 
occupation or trade, or in work requiring mechanical, technical, 
artistic, business, or clerical skills, or that is for the purpose of 
enabling a person to improve his appearance, social aptitude, 
personality, or other attributes. These Guides do not apply to resident 
primary or secondary schools or institutions of higher education 
offering at least a 2-year program of accredited college level studies 
generally acceptable for credit toward a bachelor's degree.
    (b) These Guides represent administrative interpretations of laws 
administered by the Federal Trade Commission for the guidance of the 
public in conducting its affairs in conformity with legal requirements. 
These Guides specifically address the application of section 5 of the 
FTC Act (15 U.S.C. 45) to the advertising, promotion, marketing, and 
sale of courses or programs of instruction offered by private vocational 
or distance education schools. The Guides provide the basis for 
voluntary compliance with the law by members of the industry. Practices 
inconsistent with these Guides may result in corrective action by the 
Commission under section 5 if, after investigation, the Commission has 
reason to believe that the practices fall within the scope of conduct 
declared unlawful by the statute.

[63 FR 42572, Aug. 10, 1998]



Sec.  254.1  Definitions.

    (a) Accredited. A school or course has been evaluated and found to 
meet established criteria by an accrediting agency or association 
recognized for

[[Page 181]]

such purposes by the U.S. Department of Education.
    (b) Approved. A school or course has been recognized by a State or 
Federal agency as meeting educational standards or other related 
qualifications as prescribed by that agency for the school or course to 
which the term is applied. The term is not and should not be used 
interchangeably with ``accredited.'' The term ``approved'' is not 
justified by the mere grant of a corporate charter to operate or license 
to do business as a school and should not be used unless the represented 
``approval'' has been affirmatively required or authorized by State or 
Federal law.
    (c) Industry member. Industry members are the persons, firms, 
corporations, or organizations covered by these Guides, as explained in 
Sec.  254.0(a).

[63 FR 42572, Aug. 10, 1998]



Sec.  254.2  Deceptive trade or business names.

    (a) It is deceptive for an industry member to use any trade or 
business name, label, insignia, or designation which misleads or 
deceives prospective students as to the nature of the school, its 
accreditation, programs of instruction, methods of teaching, or any 
other material fact.
    (b) It is deceptive for an industry member to misrepresent, directly 
or indirectly, by the use of a trade or business name or in any other 
manner that:
    (1) It is a part of or connected with a branch, bureau, or agency of 
the U.S. Government, or of any State, or civil service commission;
    (2) It is an employment agency or an employment agent or authorized 
training facility for any industry or business or otherwise deceptively 
conceal the fact that it is a school.
    (c) If an industry member conducts its instruction by 
correspondence, or other form of distance education, it is deceptive to 
fail to clearly and conspicuously disclose that fact in all promotional 
materials.

[63 FR 42573, Aug. 10, 1998]



Sec.  254.3  Misrepresentation of extent or nature of accreditation or approval.

    (a) It is deceptive for an industry member to misrepresent, directly 
or indirectly, the extent or nature of any approval by a State agency or 
accreditation by an accrediting agency or association. For example, an 
industry member should not:
    (1) Represent, without qualification, that its school is accredited 
unless all programs of instruction have been accredited by an 
accrediting agency recognized by the U.S. Department of Education. If an 
accredited school offers courses or programs of instruction that are not 
accredited, all advertisements or promotional materials pertaining to 
those courses or programs, and making reference to the accreditation of 
the school, should clearly and conspicuously disclose that those 
particular courses or programs are not accredited.
    (2) Represent that its school or a course is approved, unless the 
nature, extent, and purpose of that approval are disclosed.
    (3) Misrepresent that students successfully completing a course or 
program of instruction can transfer the credit to an accredited 
institution of higher education.
    (b) It is deceptive for an industry member to misrepresent that a 
course of instruction has been approved by a particular industry, or 
that successful completion of the course qualifies the student for 
admission to a labor union or similar organization or for receiving a 
State or Federal license to perform certain functions.
    (c) It is deceptive for an industry member to misrepresent that its 
courses are recommended by vocational counselors, high schools, 
colleges, educational organizations, employment agencies, or members of 
a particular industry, or that it has been the subject of unsolicited 
testimonials or endorsements from former students. It is deceptive for 
an industry member to use testimonials or endorsements that do not 
accurately reflect current practices of the school or current conditions 
or employment opportunities in the industry or occupation for which 
students are being trained.


[[Page 182]]


    Note to paragraph (c):
    The Commission's Guides Concerning Use of Endorsements and 
Testimonials in Advertising (part 255 of this chapter) provide further 
guidance in this area.

[63 FR 42573, Aug. 10, 1998]



Sec.  254.4  Misrepresentation of facilities, services, qualifications 
of staff, status, and employment prospects for students after training.

    (a) It is deceptive for an industry member to misrepresent, directly 
or indirectly, in advertising, promotional materials, or in any other 
manner, the size, location, services, facilities, or equipment of its 
school or the number or educational qualifications of its faculty and 
other personnel. For example, an industry member should not:
    (1) Misrepresent the qualifications, credentials, experience, or 
educational background of its instructors, sales representatives, or 
other employees.
    (2) Misrepresent, through statements or pictures, the nature or 
efficacy of its courses, training devices, methods, or equipment.
    (3) Misrepresent the availability of employment while the student is 
undergoing instruction or the role of the school in providing or 
arranging for such employment.
    (4) Misrepresent the availability or nature of any financial 
assistance available to students. If the cost of training is financed in 
whole or in part by loans, students should be informed that loans must 
be repaid whether or not they are successful in completing the program 
and obtaining employment.
    (5) Misrepresent the nature of any relationship between the school 
or its personnel and any government agency or that students of the 
school will receive preferred consideration for employment with any 
government agency.
    (6) Misrepresent that certain individuals or classes of individuals 
are members of its faculty or advisory board; have prepared 
instructional materials; or are otherwise affiliated with the school.
    (7) Misrepresent the nature and extent of any personal instruction, 
guidance, assistance, or other service, including placement assistance, 
it will provide students either during or after completion of a course.
    (b) It is deceptive for an industry member to misrepresent that it 
is a nonprofit organization or to misrepresent affiliation or connection 
with any public institution or private religious or charitable 
organization.
    (c) It is deceptive for an industry member to misrepresent that a 
course has been recently revised or instructional equipment is up-to-
date, or misrepresent its ability to keep a program current and up-to-
date.
    (d) It is deceptive for an industry member, in promoting any course 
of training in its advertising, promotional materials, or in any other 
manner, to misrepresent, directly or by implication, whether through the 
use of text, images, endorsements, or by other means, the availability 
of employment after graduation from a course of training, the success 
that the member's graduates have realized in obtaining such employment, 
or the salary that the member's graduates will receive in such 
employment.

    Note to paragraph (d):
    The Commission's Guides Concerning Use of Endorsements and 
Testimonials in Advertising (part 255 of this chapter) provide further 
guidance in this area.

[63 FR 42573, Aug. 10, 1998 as amended at, 63 FR 72350, Dec. 31, 1998]



Sec.  254.5  Misrepresentations of enrollment qualifications or limitations.

    (a) It is deceptive for an industry member to misrepresent the 
nature or extent of any prerequisites or qualifications for enrollment 
in a course or program of instruction.
    (b) It is deceptive for an industry member to misrepresent that the 
lack of a high school education or prior training or experience is not 
an impediment to successful completion of a course or obtaining 
employment in the field for which the course provides training.

[63 FR 42574, Aug. 10, 1998]



Sec.  254.6  Deceptive use of diplomas, degrees, or certificates.

    (a) It is deceptive for an industry member to issue a degree, 
diploma, certificate of completion, or any similar document, that 
misrepresents, directly

[[Page 183]]

or indirectly, the subject matter, substance, or content of the course 
of study or any other material fact concerning the course for which it 
was awarded or the accomplishments of the student to whom it was 
awarded.
    (b) It is deceptive for an industry member to offer or confer an 
academic, professional, or occupational degree, if the award of such 
degree has not been authorized by the appropriate State educational 
agency or approved by a nationally recognized accrediting agency, unless 
it clearly and conspicuously discloses, in all advertising and 
promotional materials that contain a reference to such degree, that its 
award has not been authorized or approved by such an agency.
    (c) It is deceptive for an industry member to offer or confer a high 
school diploma unless the program of instruction to which it pertains is 
substantially equivalent to that offered by a resident secondary school, 
and unless the student is informed, by a clear and conspicuous 
disclosure in writing prior to enrollment, that the industry member 
cannot guarantee or otherwise control the recognition that will be 
accorded the diploma by institutions of higher education, other schools, 
or prospective employers, and that such recognition is a matter solely 
within the discretion of those entities.

[63 FR 42574, Aug. 10, 1998]



Sec.  254.7  Deceptive sales practices.

    (a) It is deceptive for an industry member to use advertisements or 
promotional materials that misrepresent, directly or by implication, 
that employment is being offered or that a talent hunt or contest is 
being conducted. For example, captions such as, ``Men/women wanted to 
train for * * *,'' ``Help Wanted,'' ``Employment,'' ``Business 
Opportunities,'' and words or terms of similar import, may falsely 
convey that employment is being offered and therefore should be avoided.
    (b) It is deceptive for an industry member to fail to disclose to a 
prospective student, prior to enrollment, the total cost of the program 
and the school's refund policy if the student does not complete the 
program.
    (c) It is deceptive for an industry member to fail to disclose to a 
prospective student, prior to enrollment, all requirements for 
successfully completing the course or program and the circumstances that 
would constitute grounds for terminating the student's enrollment prior 
to completion of the program.

[63 FR 42574, Aug. 10, 1998 as amended at, 63 FR 72350, Dec. 31, 1998]



PART 255_GUIDES CONCERNING USE OF ENDORSEMENTS AND TESTIMONIALS IN 
ADVERTISING--Table of Contents




Sec.
255.0 Definitions.
255.1 General considerations.
255.2 Consumer endorsements.
255.3 Expert endorsements.
255.4 Endorsements by organizations.
255.5 Disclosure of material connections.

    Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.



Sec.  255.0  Definitions.

    (a) The Commission intends to treat endorsements and testimonials 
identically in the context of its enforcement of the Federal Trade 
Commission Act and for purposes of this part. The term endorsements is 
therefore generally used hereinafter to cover both terms and situations.
    (b) For purposes of this part, an endorsement means any advertising 
message (including verbal statements, demonstrations, or depictions of 
the name, signature, likeness or other identifying personal 
characteristics of an individual or the name or seal of an organization) 
which message consumers are likely to believe reflects the opinions, 
beliefs, findings, or experience of a party other than the sponsoring 
advertiser. The party whose opinions, beliefs, findings, or experience 
the message appears to reflect will be called the endorser and may be an 
individual, group or institution.
    (c) For purposes of this part, the term product includes any 
product, service, company or industry.
    (d) For purposes of this part, an expert is an individual, group or 
institution possessing, as a result of experience, study or training, 
knowledge of a particular subject, which knowledge is superior to that 
generally acquired by ordinary individuals.


[[Page 184]]


    Example 1: A film critic's review of a movie is excerpted in an 
advertisement. When so used, the review meets the definition of an 
endorsement since it is viewed by readers as a statement of the critic's 
own opinions and not those of the film producer, distributor or 
exhibitor. Therefore, any alteration in or quotation from the text of 
the review which does not fairly reflect its substance would be a 
violation of the standards set by this part.
    Example 2: A TV commercial depicts two women in a supermarket buying 
a laundry detergent. The women are not identified outside the context of 
the advertisement. One comments to the other how clean her brand makes 
her family's clothes, and the other then comments that she will try it 
because she has not been fully satisfied with her own brand. This 
obvious fictional dramatization of a real life situation would not be an 
endorsement.
    Example 3: In an advertisement for a pain remedy, an announcer who 
is not familiar to consumers except as a spokesman for the advertising 
drug company praises the drug's ability to deliver fast and lasting pain 
relief. He purports to speak, not on the basis of his own opinions, but 
rather in the place of and on behalf of the drug company. Such an 
advertisement would not be an endorsement.
    Example 4: A manufacturer of automobile tires hires a well known 
professional automobile racing driver to deliver its advertising message 
in television commercials. In these commercials, the driver speaks of 
the smooth ride, strength, and long life of the tires. Even though the 
message is not expressly declared to be the personal opinion of the 
driver, it may nevertheless constitute an endorsement of the tires. Many 
consumers will recognize this individual as being primarily a racing 
driver and not merely a spokesman or announcer for the advertiser. 
Accordingly, they may well believe the driver would not speak for an 
automotive product unless he/she actually believed in what he/she was 
saying and had personal knowledge sufficient to form that belief. Hence 
they would think that the advertising message reflects the driver's 
personal views as well as those of the sponsoring advertiser. This 
attribution of the underlying views to the driver brings the 
advertisement within the definition of an endorsement for purposes of 
this part.
    Example 5: A television advertisement for golf balls shows a 
prominent and well-recognized professional golfer hitting the golf 
balls. This would be an endorsement by the golfer even though he makes 
no verbal statement in the advertisement.

[40 FR 22128, May 21, 1975, as amended at 45 FR 3872, Jan. 18, 1980]



Sec.  255.1  General considerations.

    (a) Endorsements must always reflect the honest opinions, findings, 
beliefs, or experience of the endorser. Furthermore, they may not 
contain any representations which would be deceptive, or could not be 
substantiated if made directly by the advertiser. [See Example 2 to 
Guide 3 (Sec.  255.3) illustrating that a valid endorsement may 
constitute all or part of an advertiser's substantiation.]
    (b) The endorsement message need not be phrased in the exact words 
of the endorser, unless the advertisement affirmatively so represents. 
However, the endorsement may neither be presented out of context nor 
reworded so as to distort in any way the endorser's opinion or 
experience with the product. An advertiser may use an endorsement of an 
expert or celebrity only as long as it has good reason to believe that 
the endorser continues to subscribe to the views presented. An 
advertiser may satisfy this obligation by securing the endorser's views 
at reasonable intervals where reasonableness will be determined by such 
factors as new information on the performance or effectiveness of the 
product, a material alteration in the product, changes in the 
performance of competitors' products, and the advertiser's contract 
commitments.
    (c) In particular, where the advertisement represents that the 
endorser uses the endorsed product, then the endorser must have been a 
bona fide user of it at the time the endorsement was given, 
Additionally, the advertiser may continue to run the advertisement only 
so long as he has good reason to believe that the endorser remains a 
bona fide user of the product. [See Sec.  255.1(b) regarding the ``good 
reason to believe'' requirement.]

    Guide 1, Example 1: A building contractor states in an advertisement 
that he specifies the advertiser's exterior house paint because of its 
remarkable quick drying properties and its durability. This endorsement 
must comply with the pertinent requirements of Guide 3. Subsequently, 
the advertiser reformulates its paint to enable it to cover exterior 
surfaces with only one coat. Prior to continued use of the contractor's 
endorsement, the advertiser must contact the contractor in order to 
determine whether the contractor would continue to specify the

[[Page 185]]

paint and to subscribe to the views presented previously.
    Example 2: A television advertisment portrays a woman seated at a 
desk on which rest five unmarked electric typewriters. An announcer says 
``We asked Mrs. X, an executive secretary for over ten years, to try 
these five unmarked typewriters and tell us which one she liked best.''
    The advertisement portrays the secretary typing on each machine, and 
then picking the advertiser's brand. The announcer asks her why, and 
Mrs. X gives her reasons. Assuming that consumers would perceive this 
presentation as a ``blind'' test, this endorsement would probably not 
represent that Mrs. X actually uses the advertiser's machines in her 
work. In addition, the endorsement may also be required to meet the 
standards of Guide 3 on Expert Endorsements.


[Guide 1]

[45 FR 3872, Jan. 18, 1980]



Sec.  255.2  Consumer endorsements.

    (a) An advertisement employing an endorsement reflecting the 
experience of an individual or a group of consumers on a central or key 
attribute of the product or service will be interpreted as representing 
that the endorser's experience is representative of what consumers will 
generally achieve with the advertised product in actual, albeit 
variable, conditions of use. Therefore, unless the advertiser possesses 
and relies upon adequate substantiation for this representation, the 
advertisement should either clearly and conspicuously disclose what the 
generally expected performance would be in the depicted circumstances or 
clearly and conspicuously disclose the limited applicability of the 
endorser's experience to what consumers may generally expect to achieve. 
The Commission's position regarding the acceptance of disclaimers or 
disclosures is described in the preamble to these Guides published in 
the Federal Register on January 18, 1980.
    (b) Advertisements presenting endorsements by what are represented, 
directly or by implication, to be ``actual consumers'' should utilize 
actual consumers, in both the audio and video or clearly and 
conspicuously disclose that the persons in such advertisements are not 
actual consumers of the advertised product.
    (c) Claims concerning the efficacy of any drug or device as defined 
in the Federal Trade Commission Act, 15 U.S.C. 55, shall not be made in 
lay endorsements unless (1) the advertiser has adequate scientific 
substantiation for such claims and (2) the claims are not inconsistent 
with any determination that has been made by the Food and Drug 
Administration with respect to the drug or device that is the subject of 
the claim.

    Guide 2, Example 1: An advertisement presents the endorsement of an 
owner of one of the advertiser's television sets. The consumer states 
that she has needed to take the set to the shop for repairs only one 
time during her 2-year period of ownership and the costs of servicing 
the set to date have been under $10.00. Unless the advertiser possesses 
and relied upon adequate substantiation for the implied claim that such 
performance reflects that which a significant proportion of consumers 
would be likely to experience, the advertiser should include a 
disclosure that either states clearly and conspicuously what the 
generally expectable performance would be or clearly and conspicuously 
informs consumers that the performance experienced by the endorser is 
not what they should expect to experience. The mere disclosure that 
``not all consumers will get this result'' is insufficient because it 
can imply that while all consumers cannot expect the advertised results, 
a substantial number can expect them. [See the cross reference in Guide 
2(a) regarding the acceptability of disclaimers or disclosures.]
    Example 2: An advertiser presents the results of a poll of consumers 
who have used the advertiser's cake mixes as well as their own recipes. 
The results purport to show that the majority believed that their 
families could not tell the difference between the advertised mix and 
their own cakes baked from scratch. Many of the consumers are actually 
pictured in the advertisement along with relevant, quoted portions of 
their statements endorsing the product. This use of the results of a 
poll or survey of consumers probably represents a promise to consumers 
that this is the typical result that ordinary consumers can expect from 
the advertiser's cake mix.
    Example 3: An advertisement purports to portray a ``hidden camera'' 
situation in a crowded cafeteria at breakfast time. A spokesperson for 
the advertiser asks a series of actual patrons of the cafeteria for 
their spontaneous, honest opinions of the advertiser's recently 
introduced breakfast cereal. Even though the words ``hidden camera'' are 
not displayed on the screen, and even though none of the actual patrons 
is specifically identified during the advertisement, the net

[[Page 186]]

impression conveyed to consumers may well be that these are actual 
customers, and not actors. If actors have been employed, this fact 
should be disclosed.


[Guide 2]

[45 FR 3872, Jan. 18, 1980]



Sec.  255.3  Expert endorsements.

    (a) Whenever an advertisement represents, directly or by 
implication, that the endorser is an expert with respect to the 
endorsement message, then the endorser's qualifications must in fact 
give him the expertise that he is represented as possessing with respect 
to the endorsement.
    (b) While the expert may, in endorsing a product, take into account 
factors not within his expertise (e.g., matters of taste or price), his 
endorsement must be supported by an actual exercise of his expertise in 
evaluating product features or characteristics with respect to which he 
is expert and which are both relevant to an ordinary consumer's use of 
or experience with the product and also are available to the ordinary 
consumer. This evaluation must have included an examination or testing 
of the product at least as extensive as someone with the same degree of 
expertise would normally need to conduct in order to support the 
conclusions presented in the endorsement. Where, and to the extent that, 
the advertisement implies that the endorsement was based upon a 
comparison such comparison must have been included in his evaluation; 
and as a result of such comparison, he must have concluded that, with 
respect to those features on which he is expert and which are relevant 
and available to an ordinary consumer, the endorsed product is at least 
equal overall to the competitors' products. Moreover, where the net 
impression created by the endorsement is that the advertised product is 
superior to other products with respect to any such feature or features, 
then the expert must in fact have found such superiority.

    Example 1: An endorsement of a particular automobile by one 
described as an ``engineer'' implies that the endorser's professional 
training and experience are such that he is well acquainted with the 
design and performance of automobiles. If the endorser's field is, for 
example, chemical engineering, the endorsement would be deceptive.
    Example 2: A manufacturer of automobile parts advertises that its 
products are approved by the ``American Institute of Science.'' From its 
very name, consumers would infer that the ``American Institute of 
Science'' is a bona fide independent testing organization with expertise 
in judging automobile parts and that, as such, it would not approve any 
automobile part without first testing its efficacy by means of valid 
scientific methods. Even if the American Institute of Science is such a 
bona fide expert testing organization, as consumers would expect, the 
endorsement may nevertheless be deceptive unless the Institute has 
conducted valid scientific tests of the advertised products and the test 
results support the endorsement message.
    Example 3: A manufacturer of a non-prescription drug product 
represents that its product has been selected in preference to competing 
products by a large metropolitan hospital. The hospital has selected the 
product because the manufacturer, unlike its competitors, has packaged 
each dose of the product separately. This package form is not generally 
available to the public. Under the circumstances, the endorsement would 
be deceptive because the basis for the choice of the manufacturer's 
product, convenience of packaging, is neither relevant nor available to 
consumers.
    Example 4: The president of a commercial ``home cleaning service'' 
states in a television advertisement that the service uses a particular 
brand of cleanser in its business. Since the cleaning service's 
professional success depends largely upon the performance of the 
cleansers it uses, consumers would expect the service to be expert with 
respect to judging cleansing ability, and not be satisfied using an 
inferior cleanser in its business when it knows of a better one 
available to it. Accordingly, the cleaning service's endorsement must at 
least conform to those consumer expectations. The service must, of 
course, actually use the endorsed cleanser. Additionally, on the basis 
of its expertise, it must have determined that the cleansing ability of 
the endorsed cleanser is at least equal (or superior, if such is the net 
impression conveyed by the advertisement) to that of competing products 
with which the service has had experience and which remain reasonably 
available to it. Since in this example, the cleaning service's president 
makes no mention that the endorsed cleanser was ``chosen,'' 
``selected,'' or otherwise evaluated in side-by-side comparisons against 
its competitors, it is sufficient if the service has relied solely upon 
its accumulated experience in evaluating cleansers without having to 
have performed side-by-side or scientific comparisons.

[[Page 187]]

    Example 5: An association of professional athletes states in an 
advertisement that it has ``selected'' a particular brand of beverages 
as its ``official breakfast drink''. As in Example 4, the association 
would be regarded as expert in the field of nutrition for purposes of 
this section, because consumers would expect it to rely upon the 
selection of nutritious foods as part of its business needs. 
Consequently, the association's endorsement must be based upon an expert 
evaluation of the nutritional value of the endorsed beverage. 
Furthermore, unlike Example 4, the use of the words ``selected'' and 
``official'' in this endorsement imply that it was given only after 
direct comparisions had been performed among competing brands. Hence, 
the advertisement would be deceptive unless the association has in fact 
performed such comparisons between the endorsed brand and its leading 
competitors in terms of nutritional criteria, and the results of such 
comparisons conform to the net impression created by the advertisement.


[Guide 3]

[40 FR 22128, May 21, 1975]



Sec.  255.4  Endorsements by organizations.

    Endorsements by organizations, especially expert ones, are viewed as 
representing the judgment of a group whose collective experience exceeds 
that of any individual member, and whose judgments are generally free of 
the sort of subjective factors which vary from individual to individual. 
Therefore an organization's endorsement must be reached by a process 
sufficient to ensure that the endorsement fairly reflects the collective 
judgment of the organization. Moreover, if an organization is 
represented as being expert, then, in conjunction with a proper exercise 
of its expertise in evaluating the product under Sec.  255.3 of this 
part (Expert endorsements), it must utilize an expert or experts 
recognized as such by the organization or standards previously adopted 
by the organization and suitable for judging the relevant merits of such 
products.

    Example: A mattress seller advertises that its product is endorsed 
by a chiropractic association. Since the association would be regarded 
as expert with respect to judging mattresses, its endorsement must be 
supported by an expert evaluation by an expert or experts recognized as 
such by the organization, or by compliance with standards previously 
adopted by the organization and aimed at measuring the performance of 
mattresses in general and not designed with the particular attributes of 
the advertised mattress in mind. (See also Sec.  255.3, Example 5.)


[Guide 4]

[40 FR 22128, May 21, 1975]



Sec.  255.5  Disclosure of material connections.

    When there exists a connection between the endorser and the seller 
of the advertised product which might materially affect the weight or 
credibility of the endorsement (i.e., the connection is not reasonably 
expected by the audience) such connection must be fully disclosed. An 
example of a connection that is ordinarily expected by viewers and need 
not be disclosed is the payment or promise of payment to an endorser who 
is an expert or well known personality, as long as the advertiser does 
not represent that the endorsement was given without compensation. 
However, when the endorser is neither represented in the advertisement 
as an expert nor is known to a significant portion of the viewing 
public, then the advertiser should clearly and conspicuously disclose 
either the payment or promise of compensation prior to and in exchange 
for the endorsement or the fact that the endorser knew or had reasons to 
know or to believe that if the endorsement favors the advertised product 
some benefit, such as an appearance on TV, would be extended to the 
endorser.

    Example 1: A drug company commissions research on its product by a 
well-known research organization. The drug company pays a substantial 
share of the expenses of the research project, but the test design is 
under the control of the research organization. A subsequent 
advertisement by the drug company mentions the research results as the 
``findings'' of the well-known research organization. The advertiser's 
payment of expenses to the research organization need not be disclosed 
in this advertisement. Application of the standards set by Guides 3 and 
4 provides sufficient assurance that the advertiser's payment will not 
affect the weight or credibility of the endorsement.
    Example 2: A film star endorses a particular food product. The 
endorsement regards only points of taste and individual preference. This 
endorsement must of course comply with Sec.  255.1; but even though the 
compensation paid the endorser is substantial, neither

[[Page 188]]

the fact nor the amount of compensation need be revealed.
    Example 3: An actual patron of a restaurant, who is neither known to 
the public nor presented as an expert, is shown seated at the counter. 
He is asked for his ``spontaneous'' opinion of a new food product served 
in the restaurant. Assume, first, that the advertiser had posted a sign 
on the door of the restaurant informing all who entered that day that 
patrons would be interviewed by the advertiser as part of its TV 
promotion of its new soy protein ``steak''. This notification would 
materially affect the weight or credibility of the patron's endorsement, 
and, therefore, viewers of the advertisement should be clearly and 
conspicuously informed of the circumstances under which the endorsement 
was obtained.
    Assume, in the alternative, that the advertiser had not posted a 
sign on the door of the restaurant, but had informed all interviewed 
customers of the ``hidden camera'' only after interviews were completed 
and the customers had no reason to know or believe that their response 
was being recorded for use in an advertisement. Even if patrons were 
also told that they would be paid for allowing the use of their opinions 
in advertising, these facts need not be disclosed.


[Guide 5]

[45 FR 3873, Jan. 18, 1980]



PART 259_GUIDE CONCERNING FUEL ECONOMY ADVERTISING FOR NEW AUTOMOBILES--Table of Contents




Sec.
259.1 Definitions.
259.2 Advertising disclosures.

    Authority: 15 U.S.C. 41-58.



Sec.  259.1  Definitions.

    For the purposes of this part, the following definitions shall 
apply:
    (a) New automobile. Any passenger automobile or light truck for 
which a fuel economy label is required under the Energy Policy and 
Conservation Act (42 U.S.C. 6201 et seq.) or rules promulgated 
thereunder, the equitable or legal title to which has never been 
transferred by a manufacturer, distributor, or dealer to an ultimate 
purchaser. The term manufacturer shall mean any person engaged in the 
manufacturing or assembling of new automobiles, including any person 
importing new automobiles for resale and any person who acts for and is 
under control of such manufacturer, assembler, or importer in connection 
with the distribution of new automobiles. The term dealer shall mean any 
person, resident or located in the United States or any territory 
thereof, engaged in the sale or distribution of new automobiles to the 
ultimate purchaser. The term ultimate purchaser means, for purposes of 
this part, the first person, other than a dealer purchasing in his or 
her capacity as a dealer, who in good faith purchases such new 
automobile for purposes other than resale, including a person who leases 
such vehicle for his or her personal use.
    (b) Estimated city mpg. The gasoline consumption or mileage of new 
automobiles as determined in accordance with the city test procedure 
employed and published by the U.S. Environmental Protection Agency as 
described in 40 CFR 600.209-85 and expressed in miles-per-gallon, to the 
nearest whole mile-per-gallon, as measured, reported, published, or 
accepted by the U.S. Environmental Protection Agency.
    (c) Estimated highway mpg. The gasoline consumption or mileage of 
new automobiles as determined in accordance with the highway test 
procedure employed and published by the U.S. Environmental Protection 
Agency as described in 40 CFR 600.209-85 and expressed in miles-per-
gallon, to the nearest whole mile-per-gallon, as measured, reported, 
published, or accepted by the U.S. Environmental Protection Agency.
    (d) Vehicle configuration. The unique combination of automobile 
features, as defined in 40 CFR 600.002-85(24).
    (e) Estimated in-use fuel economy range. The estimated range of city 
and highway fuel economy of the particular new automobile on which the 
label is affixed, as determined in accordance with procedures employed 
by the U.S. Environmental Protection Agency as described in 40 CFR 
600.311 (for the appropriate model year), and expressed in miles-per-
gallon, to the nearest whole mile-per-gallon, as measured, reported or 
accepted by the U.S. Environment Protection Agency.
    (f) Range of estimated fuel economy values for the class of new 
automobiles. The estimated city and highway fuel economy values of the 
class of automobile (e.g., compact) as determined by the

[[Page 189]]

U.S. Environmental Protection Agency pursuant to 40 CFR 600.315 (for the 
appropriate model year) and expressed in miles-per-gallon, to the 
nearest whole mile-per-gallon.

[60 FR 56231, Nov. 8, 1995]



Sec.  259.2  Advertising disclosures.

    (a) No manufacturer or dealer shall make any express or implied 
representation in advertising concerning the fuel economy of any new 
automobile \1\ unless such representation is accompanied by the 
following clear and conspicuous disclosures:
---------------------------------------------------------------------------

    \1\ The Commission will regard as an express or implied fuel economy 
representation one which a reasonable consumer, upon considering the 
representation in the context of the entire advertisement, would 
understand as referring to the fuel economy performance of the vehicle 
or vehicles advertised.
---------------------------------------------------------------------------

    (1) If the advertisement makes:
    (i) Both a city and a highway fuel economy representation, both the 
``estimated city mpg'' and the ``estimated highway mpg'' of such new 
automobile,\2\ must be disclosed;
---------------------------------------------------------------------------

    \2\ For purposes of Sec.  259.2(a), the ``estimated city mpg'' and 
the ``estimated highway mpg'' must be those applicable to the specific 
nameplate being advertised. Fuel economy estimates assigned to ``unique 
nameplates'' (see 40 CFR 600.207-86(a)(2)) apply only to such unique car 
lines. For example, if a manufacturer has a model named the ``XZA'' that 
has fuel economy estimates assigned to it and a derivative model named 
the ``Econo-XZA'' that has separate, higher fuel economy estimates 
assigned to it, these higher numbers assigned to the ``Econo-XZA'' 
cannot be used in advertisements for the ``XZA.''
---------------------------------------------------------------------------

    (ii) A representation regarding only city or only highway fuel 
economy, only the corresponding EPA estimate must be disclosed; \3\
---------------------------------------------------------------------------

    \3\ For example, if the representation clearly refers only to 
highway fuel economy, only the ``estimated highway mpg'' need be 
disclosed.
---------------------------------------------------------------------------

    (iii) A general fuel economy claim without reference to either city 
or highway, or if the representation refers to any combined fuel economy 
number, the ``estimated city mpg'' must be disclosed; \4\ and
---------------------------------------------------------------------------

    \4\ Nothing in this section should be construed as prohibiting 
disclosure of both the city and highway estimates.
---------------------------------------------------------------------------

    (2) That the U.S. Environmental Protection Agency is the source of 
the ``estimated city mpg'' and ``estimated highway mpg'' and that the 
numbers are estimates.\5\
---------------------------------------------------------------------------

    \5\ The Commission will regard the following as the minimum 
disclosure necessary to comply with Sec.  259.2(a)(2), regardless of the 
media in which the advertisement appears: ``EPA estimate(s).''
    For television, if the estimated mpg appears in the video, the 
disclosure must appear in the video; if the estimated mpg is audio, the 
disclosure must be audio.
---------------------------------------------------------------------------

    (b) If an advertisement for a new automobile cites:
    (1) The ``estimated in-use fuel economy range,'' the advertisement 
must state with equal prominence both the upper and lower number of the 
range, an explanation of the meaning of the numbers (i.e., city mpg 
range or highway mpg range or both), and that the U.S. Environmental 
Protection Agency is the source of the figures.
    (2) The ``range of estimated fuel economy values for the class of 
new automobiles'' as a basis for comparing the fuel economy of two or 
more automobiles, such comparison must be made to the same type of range 
(i.e., city or highway).\6\
---------------------------------------------------------------------------

    \6\ For example, an advertisement could not state that ``according 
to EPA estimates new automobiles in this class get as little as X mpg 
(citing a figure from the city range) while EPA estimates that this 
automobile gets X + mpg (citing the EPA highway estimates or a number 
from the EPA estimated in-use fuel economy highway range for the 
automobile).
---------------------------------------------------------------------------

    (c) Fuel economy estimates derived from a non-EPA test may be 
disclosed provided that:
    (1) The advertisement also discloses the ``estimated city mpg'' and/
or the ``estimated highway mpg,'' as required by Sec.  259.2(a), and the 
disclosure required by Sec.  259.2(a), and gives the ``estimated city 
mpg'' and/or the ``estimated highway mpg'' figure(s) substantially more 
prominence than any other estimate; \7\

[[Page 190]]

provided, however, for radio and television advertisements in which any 
other estimate is used only in the audio, equal prominence must be given 
the ``estimated city mpg'' and/or the ``estimated highway mpg'' 
figure(s); \8\
---------------------------------------------------------------------------

    \7\ The Commission will regard the following as constituting 
``substantially more prominence:''
    For television only: If the estimated city and/or highway mpg and 
any other mileage estimate(s) appear only in the visual portion, the 
estimated city and/or highway mpg must appear in numbers twice as large 
as those used for any other estimate, and must remain on the screen at 
least as long as any other estimate. If the estimated city and highway 
mpg appear in the audio portion, visual broadcast of any other estimate 
must be accompanied by the simultaneous, at least equally prominent, 
visual broadcast of the estimated city and/or highway mpg. Each visual 
estimated city and highway mpg must be broadcast against a solid color 
background that contrasts easily with the color used for the numbers 
when viewed on both color and black and white television.
    For print only: The estimated city and/or highway mpg must appear in 
clearly legible type at least twice as large as that used for any other 
estimate. Alternatively, if the estimated city and highway mpg appear in 
type of the same size as such other estimate, they must be clearly 
legible and conspicuously circled. The estimated city and highway mpg 
must appear against a solid color, contrasting background. They may not 
appear in a footnote unless all references to fuel economy appear in a 
footnote.
    \8\ The Commission will regard the following as constituting equal 
prominence. For radio and television when any other estimate is used in 
the audio: The estimated city and/or highway mpg must be stated, either 
before or after each disclosure of such other estimate at least as 
audibly as such other estimate.
---------------------------------------------------------------------------

    (2) The source of the non-EPA test is clearly and conspicuously 
identified;
    (3) The driving conditions and variables simulated by the test which 
differ from those used to measure the ``estimated city mpg'' and/or the 
``estimated highway mpg,'' and which result in a change in fuel economy, 
are clearly and conspicuously disclosed.\9\ Such conditions and 
variables may include, but are not limited to, road or dynamometer test, 
average speed, range of speed, hot or cold start, and temperature; and
---------------------------------------------------------------------------

    \9\ For dynamometer tests any difference between the EPA and non-EPA 
tests must be disclosed. For in-use tests, the Commission realizes that 
it is impossible to duplicate the EPA test conditions, and that in-use 
tests may be designed to simulate a particular driving situation. It 
must be clear from the context of the advertisement what driving 
situation is being simulated (e.g., cold weather driving, highway 
driving, heavy load conditions). Furthermore, any driving or vehicle 
condition must be disclosed if it is significantly different from that 
which an appreciable number of consumers (whose driving condition is 
being simulated) would expect to encounter.
---------------------------------------------------------------------------

    (4) The advertisement clearly and conspicuously discloses any 
distinctions in ``vehicle configuration'' and other equipment affecting 
mileage performance (e.g., design or equipment differences which 
distinguish subconfigurations as defined by EPA) between the automobiles 
tested in the non-EPA test and the EPA tests.

[60 FR 56231, Nov. 8, 1995]



PART 260_GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS--Table of Contents




Sec.
260.1 Statement of purpose.
260.2 Scope of guides.
260.3 Structure of the guides.
260.4 Review procedure.
260.5 Interpretation and substantiation of environmental marketing 
          claims.
260.6 General principles.
260.7 Environmental marketing claims.
260.8 Environmental assessment.

    Authority: 15 U.S.C. 41-58.

    Source: 61 FR 53316, Oct. 11, 1996, unless otherwise noted.



Sec.  260.1  Statement of purpose.

    The guides in this part represent administrative interpretations of 
laws administered by the Federal Trade Commission for the guidance of 
the public in conducting its affairs in conformity with legal 
requirements. These guides specifically address the application of 
Section 5 of the FTC Act to environmental advertising and marketing 
practices. They provide the basis for voluntary compliance with such 
laws by members of industry. Conduct inconsistent with the positions 
articulated in these guides may result in corrective action by the 
Commission under Section 5 if, after investigation, the Commission has 
reason to believe that the behavior falls within the scope of conduct 
declared unlawful by the statute.



Sec.  260.2  Scope of guides.

    (a) These guides apply to environmental claims included in labeling, 
advertising, promotional materials and

[[Page 191]]

all other forms of marketing, whether asserted directly or by 
implication, through words, symbols, emblems, logos, depictions, product 
brand names, or through any other means, including marketing through 
digital or electronic means, such as the Internet or electronic mail. 
The guides apply to any claim about the environmental attributes of a 
product, package or service in connection with the sale, offering for 
sale, or marketing of such product, package or service for personal, 
family or household use, or for commercial, institutional or industrial 
use.
    (b) Because the guides are not legislative rules under Section 18 of 
the FTC Act, they are not themselves enforceable regulations, nor do 
they have the force and effect of law. The guides themselves do not 
preempt regulation of other federal agencies or of state and local 
bodies governing the use of environmental marketing claims. Compliance 
with federal, state or local law and regulations concerning such claims, 
however, will not necessarily preclude Commission law enforcement action 
under Section 5.

[63 FR 24248, May 1, 1998]



Sec.  260.3  Structure of the guides.

    The guides are composed of general principles and specific guidance 
on the use of environmental claims. These general principles and 
specific guidance are followed by examples that generally address a 
single deception concern. A given claim may raise issues that are 
addressed under more than one example and in more than one section of 
the guides. In many of the examples, one or more options are presented 
for qualifying a claim. These options are intended to provide a ``safe 
harbor'' for marketers who want certainty about how to make 
environmental claims. They do not represent the only permissible 
approaches to qualifying a claim. The examples do not illustrate all 
possible acceptable claims or disclosures that would be permissible 
under Section 5. In addition, some of the illustrative disclosures may 
be appropriate for use on labels but not in print or broadcast 
advertisements and vice versa. In some instances, the guides indicate 
within the example in what context or contexts a particular type of 
disclosure should be considered.



Sec.  260.4  Review procedure.

    The Commission will review the guides as part of its general program 
of reviewing all industry guides on an ongoing basis. Parties may 
petition the Commission to alter or amend these guides in light of 
substantial new evidence regarding consumer interpretation of a claim or 
regarding substantiation of a claim. Following review of such a 
petition, the Commission will take such action as it deems appropriate.



Sec.  260.5  Interpretation and substantiation of environmental marketing claims.

    Section 5 of the FTC Act makes unlawful deceptive acts and practices 
in or affecting commerce. The Commission's criteria for determining 
whether an express or implied claim has been made are enunciated in the 
Commission's Policy Statement on Deception. \1\ In addition, any party 
making an express or implied claim that presents an objective assertion 
about the environmental attribute of a product, package or service must, 
at the time the claim is made, possess and rely upon a reasonable basis 
substantiating the claim. A reasonable basis consists of competent and 
reliable evidence. In the context of environmental marketing claims, 
such substantiation will often require competent and reliable scientific 
evidence, defined as tests, analyses, research, studies or other 
evidence based on the expertise of professionals in the relevant area, 
conducted and evaluated in an objective manner by persons qualified to 
do so, using procedures generally accepted in the profession to yield 
accurate and reliable results. Further guidance on the reasonable basis 
standard is set forth in

[[Page 192]]

the Commission's 1983 Policy Statement on the Advertising Substantiation 
Doctrine. 49 FR 30999 (1984); appended to Thompson Medical Co., 104 
F.T.C. 648 (1984). The Commission has also taken action in a number of 
cases involving alleged deceptive or unsubstantiated environmental 
advertising claims. A current list of environmental marketing cases and/
or copies of individual cases can be obtained by calling the FTC 
Consumer Response Center at (202) 326-2222.
---------------------------------------------------------------------------

    \1\ Cliffdale Associates, Inc., 103 F.T.C. 110, at 176, 176 n.7, 
n.8, Appendix, reprinting letter dated Oct. 14, 1983, from the 
Commission to The Honorable John D. Dingell, Chairman, Committee on 
Energy and Commerce, U.S. House of Representatives (1984) (``Deception 
Statement'').

[63 FR 24248, May 1, 1998]



Sec.  260.6  General principles.

    The following general principles apply to all environmental 
marketing claims, including, but not limited to, those described in 
Sec.  260.7. In addition, Sec.  260.7 contains specific guidance 
applicable to certain environmental marketing claims. Claims should 
comport with all relevant provisions of these guides, not simply the 
provision that seems most directly applicable.
    (a) Qualifications and disclosures. The Commission traditionally has 
held that in order to be effective, any qualifications or disclosures 
such as those described in these guides should be sufficiently clear, 
prominent and understandable to prevent deception. Clarity of language, 
relative type size and proximity to the claim being qualified, and an 
absence of contrary claims that could undercut effectiveness, will 
maximize the likelihood that the qualifications and disclosures are 
appropriately clear and prominent.
    (b) Distinction between benefits of product, package and service. An 
environmental marketing claim should be presented in a way that makes 
clear whether the environmental attribute or benefit being asserted 
refers to the product, the product's packaging, a service or to a 
portion or component of the product, package or service. In general, if 
the environmental attribute or benefit applies to all but minor, 
incidental components of a product or package, the claim need not be 
qualified to identify that fact. There may be exceptions to this general 
principle. For example, if an unqualified ``recyclable'' claim is made 
and the presence of the incidental component significantly limits the 
ability to recycle the product, then the claim would be deceptive.

    Example 1: A box of aluminum foil is labeled with the claim 
``recyclable,'' without further elaboration. Unless the type of product, 
surrounding language, or other context of the phrase establishes whether 
the claim refers to the foil or the box, the claim is deceptive if any 
part of either the box or the foil, other than minor, incidental 
components, cannot be recycled.
    Example 2: A soft drink bottle is labeled ``recycled.'' The bottle 
is made entirely from recycled materials, but the bottle cap is not. 
Because reasonable consumers are likely to consider the bottle cap to be 
a minor, incidental component of the package, the claim is not 
deceptive. Similarly, it would not be deceptive to label a shopping bag 
``recycled'' where the bag is made entirely of recycled material but the 
easily detachable handle, an incidental component, is not.

    (c) Overstatement of environmental attribute: An environmental 
marketing claim should not be presented in a manner that overstates the 
environmental attribute or benefit, expressly or by implication. 
Marketers should avoid implications of significant environmental 
benefits if the benefit is in fact negligible.

    Example 1: A package is labeled, ``50% more recycled content than 
before.'' The manufacturer increased the recycled content of its package 
from 2 percent recycled material to 3 percent recycled material. 
Although the claim is technically true, it is likely to convey the false 
impression that the advertiser has increased significantly the use of 
recycled material.
    Example 2: A trash bag is labeled ``recyclable'' without 
qualification. Because trash bags will ordinarily not be separated out 
from other trash at the landfill or incinerator for recycling, they are 
highly unlikely to be used again for any purpose. Even if the bag is 
technically capable of being recycled, the claim is deceptive since it 
asserts an environmental benefit where no significant or meaningful 
benefit exists.
    Example 3: A paper grocery sack is labeled ``reusable.'' The sack 
can be brought back to the store and reused for carrying groceries but 
will fall apart after two or three reuses, on average. Because 
reasonable consumers are unlikely to assume that a paper grocery sack is 
durable, the unqualified claim does not overstate the environmental 
benefit conveyed to consumers. The claim is not deceptive and does not 
need to be qualified to indicate the limited reuse of the sack.
    Example 4: A package of paper coffee filters is labeled ``These 
filters were made with a chlorine-free bleaching process.'' The filters

[[Page 193]]

are bleached with a process that releases into the environment a 
reduced, but still significant, amount of the same harmful byproducts 
associated with chlorine bleaching. The claim is likely to overstate the 
product's benefits because it is likely to be interpreted by consumers 
to mean that the product's manufacture does not cause any of the 
environmental risks posed by chlorine bleaching. A claim, however, that 
the filters were ``bleached with a process that substantially reduces, 
but does not eliminate, harmful substances associated with chlorine 
bleaching'' would not, if substantiated, overstate the product's 
benefits and is unlikely to be deceptive.

    (d) Comparative claims: Environmental marketing claims that include 
a comparative statement should be presented in a manner that makes the 
basis for the comparison sufficiently clear to avoid consumer deception. 
In addition, the advertiser should be able to substantiate the 
comparison.

    Example 1: An advertiser notes that its shampoo bottle contains 
``20% more recycled content.'' The claim in its context is ambiguous. 
Depending on contextual factors, it could be a comparison either to the 
advertiser's immediately preceding product or to a competitor's product. 
The advertiser should clarify the claim to make the basis for comparison 
clear, for example, by saying ``20% more recycled content than our 
previous package.'' Otherwise, the advertiser should be prepared to 
substantiate whatever comparison is conveyed to reasonable consumers.
    Example 2: An advertiser claims that ``our plastic diaper liner has 
the most recycled content.'' The advertised diaper does have more 
recycled content, calculated as a percentage of weight, than any other 
on the market, although it is still well under 100% recycled. Provided 
the recycled content and the comparative difference between the product 
and those of competitors are significant and provided the specific 
comparison can be substantiated, the claim is not deceptive.
    Example 3: An ad claims that the advertiser's packaging creates 
``less waste than the leading national brand.'' The advertiser's source 
reduction was implemented sometime ago and is supported by a calculation 
comparing the relative solid waste contributions of the two packages. 
The advertiser should be able to substantiate that the comparison 
remains accurate.

[61 FR 53316, Oct. 11, 1996, as amended at 63 FR 24248, May 1, 1998]



Sec.  260.7  Environmental marketing claims.

    Guidance about the use of environmental marketing claims is set 
forth in this section. Each guide is followed by several examples that 
illustrate, but do not provide an exhaustive list of, claims that do and 
do not comport with the guides. In each case, the general principles set 
forth in Sec.  260.6 should also be followed.\2\
---------------------------------------------------------------------------

    \2\ These guides do not currently address claims based on a 
``lifecycle'' theory of environmental benefit. The Commission lacks 
sufficient information on which to base guidance on such claims.
---------------------------------------------------------------------------

    (a) General environmental benefit claims. It is deceptive to 
misrepresent, directly or by implication, that a product, package or 
service offers a general environmental benefit. Unqualified general 
claims of environmental benefit are difficult to interpret, and 
depending on their context, may convey a wide range of meanings to 
consumers. In many cases, such claims may convey that the product, 
package or service has specific and far-reaching environmental benefits. 
As explained in the Commission's Advertising Substantiation Statement, 
every express and material implied claim that the general assertion 
conveys to reasonable consumers about an objective quality, feature or 
attribute of a product or service must be substantiated. Unless this 
substantiation duty can be met, broad environmental claims should either 
be avoided or qualified, as necessary, to prevent deception about the 
specific nature of the environmental benefit being asserted.

    Example 1: A brand name like ``Eco-Safe'' would be deceptive if, in 
the context of the product so named, it leads consumers to believe that 
the product has environmental benefits which cannot be substantiated by 
the manufacturer. The claim would not be deceptive if ``Eco-Safe'' were 
followed by clear and prominent qualifying language limiting the safety 
representation to a particular product attribute for which it could be 
substantiated, and provided that no other deceptive implications were 
created by the context.
    Example 2: A product wrapper is printed with the claim 
``Environmentally Friendly.'' Textual comments on the wrapper explain 
that the wrapper is ``Environmentally Friendly because it was not 
chlorine

[[Page 194]]

bleached, a process that has been shown to create harmful substances.'' 
The wrapper was, in fact, not bleached with chlorine. However, the 
production of the wrapper now creates and releases to the environment 
significant quantities of other harmful substances. Since consumers are 
likely to interpret the ``Environmentally Friendly'' claim, in 
combination with the textual explanation, to mean that no significant 
harmful substances are currently released to the environment, the 
``Environmentally Friendly'' claim would be deceptive.
    Example 3: A pump spray product is labeled ``environmentally safe.'' 
Most of the product's active ingredients consist of volatile organic 
compounds (VOCs) that may cause smog by contributing to ground-level 
ozone formation. The claim is deceptive because, absent further 
qualification, it is likely to convey to consumers that use of the 
product will not result in air pollution or other harm to the 
environment.
    Example 4: A lawn care pesticide is advertised as ``essentially non-
toxic'' and ``practically non-toxic.'' Consumers would likely interpret 
these claims in the context of such a product as applying not only to 
human health effects but also to the product's environmental effects. 
Since the claims would likely convey to consumers that the product does 
not pose any risk to humans or the environment, if the pesticide in fact 
poses a significant risk to humans or environment, the claims would be 
deceptive.
    Example 5: A product label contains an environmental seal, either in 
the form of a globe icon, or a globe icon with only the text ``Earth 
Smart'' around it. Either label is likely to convey to consumers that 
the product is environmentally superior to other products. If the 
manufacturer cannot substantiate this broad claim, the claim would be 
deceptive. The claims would not be deceptive if they were accompanied by 
clear and prominent qualifying language limiting the environmental 
superiority representation to the particular product attribute or 
attributes for which they could be substantiated, provided that no other 
deceptive implications were created by the context.
    Example 6: A product is advertised as ``environmentally 
preferable.'' This claim is likely to convey to consumers that this 
product is environmentally superior to other products. If the 
manufacturer cannot substantiate this broad claim, the claim would be 
deceptive. The claim would not be deceptive if it were accompanied by 
clear and prominent qualifying language limiting the environmental 
superiority representation to the particular product attribute or 
attributes for which it could be substantiated, provided that no other 
deceptive implications were created by the context.

    (b) Degradable/biodegradable/photo de grad able: It is deceptive to 
misrepresent, directly or by implication, that a product or package is 
degradable, biodegradable or photo de grad able. An unqualified claim 
that a product or package is degradable, biodegradable or photo de grad 
able should be substantiated by competent and reliable scientific 
evidence that the entire product or package will completely break down 
and return to nature, i.e., decompose into elements found in nature 
within a reasonably short period of time after customary disposal. 
Claims of de grad a bility, biode grad a bility or photo de grad abil 
ity should be qualified to the extent necessary to avoid consumer 
deception about:
    (1) The product or package's ability to degrade in the environment 
where it is customarily disposed; and
    (2) The rate and extent of degradation.

    Example 1: A trash bag is marketed as ``degradable,'' with no 
qualification or other disclosure. The marketer relies on soil burial 
tests to show that the product will decompose in the presence of water 
and oxygen. The trash bags are customarily disposed of in incineration 
facilities or at sanitary landfills that are managed in a way that 
inhibits degradation by minimizing moisture and oxygen. Degradation will 
be irrelevant for those trash bags that are incinerated and, for those 
disposed of in landfills, the marketer does not possess adequate 
substantiation that the bags will degrade in a reasonably short period 
of time in a landfill. The claim is therefore deceptive.
    Example 2: A commercial agricultural plastic mulch film is 
advertised as ``Photodegradable'' and qualified with the phrase, ``Will 
break down into small pieces if left uncovered in sunlight.'' The claim 
is supported by competent and reliable scientific evidence that the 
product will break down in a reasonably short period of time after being 
exposed to sunlight and into sufficiently small pieces to become part of 
the soil. The qualified claim is not deceptive. Because the claim is 
qualified to indicate the limited extent of breakdown, the advertiser 
need not meet the elements for an unqualified photo de grad able claim, 
i.e., that the product will not only break down, but also will decompose 
into elements found in nature.
    Example 3: A soap or shampoo product is advertised as 
``biodegradable,'' with no qualification or other disclosure. The 
manufacturer has competent and reliable scientific evidence 
demonstrating that the product,

[[Page 195]]

which is customarily disposed of in sewage systems, will break down and 
decompose into elements found in nature in a short period of time. The 
claim is not deceptive.
    Example 4: A plastic six-pack ring carrier is marked with a small 
diamond. Many state laws require that plastic six-pack ring carriers 
degrade if littered, and several state laws also require that the 
carriers be marked with a small diamond symbol to indicate that they 
meet performance standards for de grad a bility. The use of the diamond, 
by itself, does not constitute a claim of de grad a bility. \3\
---------------------------------------------------------------------------

    \3\ The guides' treatment of unqualified degradable claims is 
intended to help prevent consumer deception and is not intended to 
establish performance standards for laws intended to ensure the de grad 
a bility of products when littered.

    (c) Compostable. (1) It is deceptive to misrepresent, directly or by 
implication, that a product or package is compostable. A claim that a 
product or package is compostable should be substantiated by competent 
and reliable scientific evidence that all the materials in the product 
or package will break down into, or otherwise become part of, usable 
compost (e.g., soil-conditioning material, mulch) in a safe and timely 
manner in an appropriate composting program or facility, or in a home 
compost pile or device. Claims of compostability should be qualified to 
the extent necessary to avoid consumer deception. An unqualified claim 
may be deceptive if:
    (i) The package cannot be safely composted in a home compost pile or 
device; or
    (ii) The claim misleads consumers about the environmental benefit 
provided when the product is disposed of in a landfill.
    (2) A claim that a product is compostable in a municipal or 
institutional composting facility may need to be qualified to the extent 
necessary to avoid deception about the limited availability of such 
composting facilities.

    Example 1: A manufacturer indicates that its unbleached coffee 
filter is compostable. The unqualified claim is not deceptive provided 
the manufacturer can substantiate that the filter can be converted 
safely to usable compost in a timely manner in a home compost pile or 
device. If this is the case, it is not relevant that no local municipal 
or institutional composting facilities exist.
    Example 2: A lawn and leaf bag is labeled as ``Compostable in 
California Municipal Yard Trimmings Composting Facilities.'' The bag 
contains toxic ingredients that are released into the compost material 
as the bag breaks down. The claim is deceptive if the presence of these 
toxic ingredients prevents the compost from being usable.
    Example 3: A manufacturer makes an unqualified claim that its 
package is compostable. Although municipal or institutional composting 
facilities exist where the product is sold, the package will not break 
down into usable compost in a home compost pile or device. To avoid 
deception, the manufacturer should disclose that the package is not 
suitable for home composting.
    Example 4: A nationally marketed lawn and leaf bag is labeled 
``compostable.'' Also printed on the bag is a disclosure that the bag is 
not designed for use in home compost piles. The bags are in fact 
composted in yard trimmings composting programs in many communities 
around the country, but such programs are not available to a substantial 
majority of consumers or communities where the bag is sold. The claim is 
deceptive because reasonable consumers living in areas not served by 
yard trimmings programs may understand the reference to mean that 
composting facilities accepting the bags are available in their area. To 
avoid deception, the claim should be qualified to indicate the limited 
availability of such programs, for example, by stating, ``Appropriate 
facilities may not exist in your area.'' Other examples of adequate 
qualification of the claim include providing the approximate percentage 
of communities or the population for which such programs are available.
    Example 5: A manufacturer sells a disposable diaper that bears the 
legend, ``This diaper can be composted where solid waste composting 
facilities exist. There are currently [X number of] solid waste 
composting facilities across the country.'' The claim is not deceptive, 
assuming that composting facilities are available as claimed and the 
manufacturer can substantiate that the diaper can be converted safely to 
usable compost in solid waste composting facilities.
    Example 6: A manufacturer markets yard trimmings bags only to 
consumers residing in particular geographic areas served by county yard 
trimmings composting programs. The bags meet specifications for these 
programs and are labeled, ``Compostable Yard Trimmings Bag for County 
Composting Programs.'' The claim is not deceptive. Because the bags are 
compostable where they are sold, no qualification is required to 
indicate the limited availability of composting facilities.


[[Page 196]]


    (d) Recyclable. It is deceptive to misrepresent, directly or by 
implication, that a product or package is recyclable. A product or 
package should not be marketed as recyclable unless it can be collected, 
separated or otherwise recovered from the solid waste stream for reuse, 
or in the manufacture or assembly of another package or product, through 
an established recycling program. Unqualified claims of recyclability 
for a product or package may be made if the entire product or package, 
excluding minor incidental components, is recyclable. For products or 
packages that are made of both recyclable and non-recyclable components, 
the recyclable claim should be adequately qualified to avoid consumer 
deception about which portions or components of the product or package 
are recyclable. Claims of recyclability should be qualified to the 
extent necessary to avoid consumer deception about any limited 
availability of recycling programs and collection sites. If an 
incidental component significantly limits the ability to recycle a 
product or package, a claim of recyclability would be deceptive. A 
product or package that is made from recyclable material, but, because 
of its shape, size or some other attribute, is not accepted in recycling 
programs for such material, should not be marketed as recyclable.\4\
---------------------------------------------------------------------------

    \4\ The Mercury-Containing and Rechargeable Battery Management Act 
establishes uniform national labeling requirements regarding certain 
types of nickel-cadmium rechargeable and small lead-acid rechargeable 
batteries to aid in battery collection and recycling. The Battery Act 
requires, in general, that the batteries must be labeled with the three-
chasing-arrows symbol or a comparable recycling symbol, and the 
statement ldquo;Battery Must Be Recycled Or Disposed Of Properly.'' 42 
U.S.C. 14322(b). Batteries labeled in accordance with this federal 
statute are deemed to be in compliance with these guides.

    Example 1: A packaged product is labeled with an unqualified claim, 
``recyclable.'' It is unclear from the type of product and other context 
whether the claim refers to the product or its package. The unqualified 
claim is likely to convey to reasonable consumers that all of both the 
product and its packaging that remain after normal use of the product, 
except for minor, incidental components, can be recycled. Unless each 
such message can be substantiated, the claim should be qualified to 
indicate what portions are recyclable.
    Example 2: A nationally marketed 8 oz. plastic cottage-cheese 
container displays the Society of the Plastics Industry (SPI) code 
(which consists of a design of arrows in a triangular shape containing a 
number and abbreviation identifying the component plastic resin) on the 
front label of the container, in close proximity to the product name and 
logo. The manufacturer's conspicuous use of the SPI code in this manner 
constitutes a recyclability claim. Unless recycling facilities for this 
container are available to a substantial majority of consumers or 
communities, the claim should be qualified to disclose the limited 
availability of recycling programs for the container. If the SPI code, 
without more, had been placed in an inconspicuous location on the 
container (e.g., embedded in the bottom of the container) it would not 
constitute a claim of recyclability.
    Example 3: A container can be burned in incinerator facilities to 
produce heat and power. It cannot, however, be recycled into another 
product or package. Any claim that the container is recyclable would be 
deceptive.
    Example 4: A nationally marketed bottle bears the unqualified 
statement that it is ``recyclable.'' Collection sites for recycling the 
material in question are not available to a substantial majority of 
consumers or communities, although collection sites are established in a 
significant percentage of communities or available to a significant 
percentage of the population. The unqualified claim is deceptive 
because, unless evidence shows otherwise, reasonable consumers living in 
communities not served by programs may conclude that recycling programs 
for the material are available in their area. To avoid deception, the 
claim should be qualified to indicate the limited availability of 
programs, for example, by stating ``This bottle may not be recyclable in 
your area,'' or ``Recycling programs for this bottle may not exist in 
your area.'' Other examples of adequate qualifications of the claim 
include providing the approximate percentage of communities or the 
population to whom programs are available.
    Example 5: A paperboard package is marketed nationally and labeled, 
``Recyclable where facilities exist.'' Recycling programs for this 
package are available in a significant percentage of communities or to a 
significant percentage of the population, but are not available to a 
substantial majority of consumers. The claim is deceptive because, 
unless evidence shows otherwise, reasonable consumers living in 
communities not served by programs that recycle paperboard packaging may 
understand this phrase to mean

[[Page 197]]

that such programs are available in their area. To avoid deception, the 
claim should be further qualified to indicate the limited availability 
of programs, for example, by using any of the approaches set forth in 
Example 4 above.
    Example 6: A foam polystyrene cup is marketed as follows: 
``Recyclable in the few communities with facilities for foam polystyrene 
cups.'' Collection sites for recycling the cup have been established in 
a half-dozen major metropolitan areas. This disclosure illustrates one 
approach to qualifying a claim adequately to prevent deception about the 
limited availability of recycling programs where collection facilities 
are not established in a significant percentage of communities or 
available to a significant percentage of the population. Other examples 
of adequate qualification of the claim include providing the number of 
communities with programs, or the percentage of communities or the 
population to which programs are available.
    Example 7: A label claims that the package ``includes some 
recyclable material.'' The package is composed of four layers of 
different materials, bonded together. One of the layers is made from the 
recyclable material, but the others are not. While programs for 
recycling this type of material are available to a substantial majority 
of consumers, only a few of those programs have the capability to 
separate the recyclable layer from the non-recyclable layers. Even 
though it is technologically possible to separate the layers, the claim 
is not adequately qualified to avoid consumer deception. An 
appropriately qualified claim would be, ``includes material recyclable 
in the few communities that collect multi-layer products.'' Other 
examples of adequate qualification of the claim include providing the 
number of communities with programs, or the percentage of communities or 
the population to which programs are available.
    Example 8: A product is marketed as having a ``recyclable'' 
container. The product is distributed and advertised only in Missouri. 
Collection sites for recycling the container are available to a 
substantial majority of Missouri residents, but are not yet available 
nationally. Because programs are generally available where the product 
is marketed, the unqualified claim does not deceive consumers about the 
limited availability of recycling programs.
    Example 9: A manufacturer of one-time use photographic cameras, with 
dealers in a substantial majority of communities, collects those cameras 
through all of its dealers. After the exposed film is removed for 
processing, the manufacturer reconditions the cameras for resale and 
labels them as follows: ``Recyclable through our dealership network.'' 
This claim is not deceptive, even though the cameras are not recyclable 
through conventional curbside or drop off recycling programs.
    Example 10: A manufacturer of toner cartridges for laser printers 
has established a recycling program to recover its cartridges 
exclusively through its nationwide dealership network. The company 
advertises its cartridges nationally as ``Recyclable. Contact your local 
dealer for details.'' The company's dealers participating in the 
recovery program are located in a significant number--but not a 
substantial majority--of communities. The ``recyclable'' claim is 
deceptive unless it contains one of the qualifiers set forth in Example 
4. If participating dealers are located in only a few communities, the 
claim should be qualified as indicated in Example 6.
    Example 11: An aluminum beverage can bears the statement ``Please 
Recycle.'' This statement is likely to convey to consumers that the 
package is recyclable. Because collection sites for recycling aluminum 
beverage cans are available to a substantial majority of consumers or 
communities, the claim does not need to be qualified to indicate the 
limited availability of recycling programs.

    (e) Recycled content. (1) A recycled content claim may be made only 
for materials that have been recovered or otherwise diverted from the 
solid waste stream, either during the manufacturing process (pre-
consumer), or after consumer use (post-consumer). To the extent the 
source of recycled content includes pre-consumer material, the 
manufacturer or advertiser must have substantiation for concluding that 
the pre-consumer material would otherwise have entered the solid waste 
stream. In asserting a recycled content claim, distinctions may be made 
between pre-consumer and post-consumer materials. Where such 
distinctions are asserted, any express or implied claim about the 
specific pre-consumer or post-consumer content of a product or package 
must be substantiated.
    (2) It is deceptive to misrepresent, directly or by implication, 
that a product or package is made of recycled material, which includes 
recycled raw material, as well as used, \5\ reconditioned and 
remanufactured components. Unqualified claims of recycled content may be 
made if the entire product or

[[Page 198]]

package, excluding minor, incidental components, is made from recycled 
material. For products or packages that are only partially made of 
recycled material, a recycled claim should be adequately qualified to 
avoid consumer deception about the amount, by weight, of recycled 
content in the finished product or package. Additionally, for products 
that contain used, reconditioned or remanufactured components, a 
recycled claim should be adequately qualified to avoid consumer 
deception about the nature of such components. No such qualification 
would be necessary in cases where it would be clear to consumers from 
the context that a product's recycled content consists of used, 
reconditioned or remanufactured components.
---------------------------------------------------------------------------

    \5\ The term ``used'' refers to parts that are not new and that have 
not undergone any type of remanufacturing and/or reconditioning.

    Example 1: A manufacturer routinely collects spilled raw material 
and scraps left over from the original manufacturing process. After a 
minimal amount of reprocessing, the manufacturer combines the spills and 
scraps with virgin material for use in further production of the same 
product. A claim that the product contains recycled material is 
deceptive since the spills and scraps to which the claim refers are 
normally reused by industry within the original manufacturing process, 
and would not normally have entered the waste stream.
    Example 2: A manufacturer purchases material from a firm that 
collects discarded material from other manufacturers and resells it. All 
of the material was diverted from the solid waste stream and is not 
normally reused by industry within the original manufacturing process. 
The manufacturer includes the weight of this material in its 
calculations of the recycled content of its products. A claim of 
recycled content based on this calculation is not deceptive because, 
absent the purchase and reuse of this material, it would have entered 
the waste stream.
    Example 3: A greeting card is composed 30% by fiber weight of paper 
collected from consumers after use of a paper product, and 20% by fiber 
weight of paper that was generated after completion of the paper-making 
process, diverted from the solid waste stream, and otherwise would not 
normally have been reused in the original manufacturing process. The 
marketer of the card may claim either that the product ``contains 50% 
recycled fiber,'' or may identify the specific pre-consumer and/or post-
consumer content by stating, for example, that the product ``contains 
50% total recycled fiber, including 30% post-consumer.''
    Example 4: A paperboard package with 20% recycled fiber by weight is 
labeled as containing ``20% recycled fiber.'' Some of the recycled 
content was composed of material collected from consumers after use of 
the original product. The rest was composed of overrun newspaper stock 
never sold to customers. The claim is not deceptive.
    Example 5: A product in a multi-component package, such as a 
paperboard box in a shrink-wrapped plastic cover, indicates that it has 
recycled packaging. The paperboard box is made entirely of recycled 
material, but the plastic cover is not. The claim is deceptive since, 
without qualification, it suggests that both components are recycled. A 
claim limited to the paperboard box would not be deceptive.
    Example 6: A package is made from layers of foil, plastic, and paper 
laminated together, although the layers are indistinguishable to 
consumers. The label claims that ``one of the three layers of this 
package is made of recycled plastic.'' The plastic layer is made 
entirely of recycled plastic. The claim is not deceptive provided the 
recycled plastic layer constitutes a significant component of the entire 
package.
    Example 7: A paper product is labeled as containing ``100% recycled 
fiber.'' The claim is not deceptive if the advertiser can substantiate 
the conclusion that 100% by weight of the fiber in the finished product 
is recycled.
    Example 8: A frozen dinner is marketed in a package composed of a 
cardboard box over a plastic tray. The package bears the legend, 
``package made from 30% recycled material.'' Each packaging component 
amounts to one-half the weight of the total package. The box is 20% 
recycled content by weight, while the plastic tray is 40% recycled 
content by weight. The claim is not deceptive, since the average amount 
of recycled material is 30%.
    Example 9: A paper greeting card is labeled as containing 50% 
recycled fiber. The seller purchases paper stock from several sources 
and the amount of recycled fiber in the stock provided by each source 
varies. Because the 50% figure is based on the annual weighted average 
of recycled material purchased from the sources after accounting for 
fiber loss during the production process, the claim is permissible.
    Example 10: A packaged food product is labeled with a three-chasing-
arrows symbol without any further explanatory text as to its meaning. By 
itself, the symbol is likely to convey that the packaging is both 
``recyclable'' and is made entirely from recycled material. Unless both 
messages can be substantiated, the claim should be qualified as to 
whether it refers to the package's recyclability and/or its recycled 
content. If a ``recyclable'' claim is being made, the label may need to 
disclose the limited availability of recycling programs for the package. 
If a recycled content claim is being made and the

[[Page 199]]

packaging is not made entirely from recycled material, the label should 
disclose the percentage of recycled content.
    Example 11: A laser printer toner cartridge containing 25% recycled 
raw materials and 40% reconditioned parts is labeled ``65% recycled 
content; 40% from reconditioned parts.'' This claim is not deceptive.
    Example 12: A store sells both new and used sporting goods. One of 
the items for sale in the store is a baseball helmet that, although 
used, is no different in appearance than a brand new item. The helmet 
bears an unqualified ``Recycled'' label. This claim is deceptive 
because, unless evidence shows otherwise, consumers could reasonably 
believe that the helmet is made of recycled raw materials, when it is in 
fact a used item. An acceptable claim would bear a disclosure clearly 
stating that the helmet is used.
    Example 13: A manufacturer of home electronics labels its video 
cassette recorders (``VCRs'') as ``40% recycled.'' In fact, each VCR 
contains 40% reconditioned parts. This claim is deceptive because 
consumers are unlikely to know that the VCR's recycled content consists 
of reconditioned parts.
    Example 14: A dealer of used automotive parts recovers a serviceable 
engine from a vehicle that has been totaled. Without repairing, 
rebuilding, remanufacturing, or in any way altering the engine or its 
components, the dealer attaches a ``Recycled'' label to the engine, and 
offers it for resale in its used auto parts store. In this situation, an 
unqualified recycled content claim is not likely to be deceptive because 
consumers are likely to understand that the engine is used and has not 
undergone any rebuilding.
    Example 15: An automobile parts dealer purchases a transmission that 
has been recovered from a junked vehicle. Eighty-five percent by weight 
of the transmission was rebuilt and 15% constitutes new materials. After 
rebuilding \6\ the transmission in accordance with industry practices, 
the dealer packages it for resale in a box labeled ``Rebuilt 
Transmission,'' or ``Rebuilt Transmission (85% recycled content from 
rebuilt parts),'' or ``Recycled Transmission (85% recycled content from 
rebuilt parts).'' These claims are not likely to be deceptive.
---------------------------------------------------------------------------

    \6\ The term ``rebuilding'' means that the dealer dismantled and 
reconstructed the transmission as necessary, cleaned all of its internal 
and external parts and eliminated rust and corrosion, restored all 
impaired, defective or substantially worn parts to a sound condition (or 
replaced them if necessary), and performed any operations required to 
put the transmission in sound working condition.

    (f) Source reduction: It is deceptive to misrepresent, directly or 
by implication, that a product or package has been reduced or is lower 
in weight, volume or toxicity. Source reduction claims should be 
qualified to the extent necessary to avoid consumer deception about the 
amount of the source reduction and about the basis for any comparison 
---------------------------------------------------------------------------
asserted.

    Example 1: An ad claims that solid waste created by disposal of the 
advertiser's packaging is ``now 10% less than our previous package.'' 
The claim is not deceptive if the advertiser has substantiation that 
shows that disposal of the current package contributes 10% less waste by 
weight or volume to the solid waste stream when compared with the 
immediately preceding version of the package.
    Example 2: An advertiser notes that disposal of its product 
generates ``10% less waste.'' The claim is ambiguous. Depending on 
contextual factors, it could be a comparison either to the immediately 
preceding product or to a competitor's product. The ``10% less waste'' 
reference is deceptive unless the seller clarifies which comparison is 
intended and substantiates that comparison, or substantiates both 
possible interpretations of the claim.

    (g) Refillable: It is deceptive to misrepresent, directly or by 
implication, that a package is refillable. An unqualified refillable 
claim should not be asserted unless a system is provided for the 
collection and return of the package for refill or the later refill of 
the package by consumers with product subsequently sold in another 
package. A package should not be marketed with an unqualified refillable 
claim, if it is up to the consumer to find new ways to refill the 
package.

    Example 1: A container is labeled ``refillable x times.'' The 
manufacturer has the capability to refill returned containers and can 
show that the container will withstand being refilled at least x times. 
The manufacturer, however, has established no collection program. The 
unqualified claim is deceptive because there is no means for collection 
and return of the container to the manufacturer for refill.
    Example 2: A bottle of fabric softener states that it is in a 
``handy refillable container.'' The manufacturer also sells a large-
sized container that indicates that the consumer is expected to use it 
to refill the smaller container. The manufacturer sells the large-sized 
container in the same market areas where it sells the small container. 
The claim is not deceptive because there is a means for consumers to 
refill the smaller container from larger containers of the same product.


[[Page 200]]


    (h) Ozone safe and ozone friendly: It is deceptive to misrepresent, 
directly or by implication, that a product is safe for or ``friendly'' 
to the ozone layer or the atmosphere. For example, a claim that a 
product does not harm the ozone layer is deceptive if the product 
contains an ozone-depleting substance.

    Example 1: A product is labeled ``ozone friendly.'' The claim is 
deceptive if the product contains any ozone-depleting substance, 
including those substances listed as Class I or Class II chemicals in 
Title VI of the Clean Air Act Amendments of 1990, Public Law 101-549, 
and others subsequently designated by EPA as ozone-depleting substances. 
Chemicals that have been listed or designated as Class I are 
chlorofluorocarbons (CFCs), halons, carbon tetrachloride, 1,1,1-
trichloroethane, methyl bromide and hydrobromofluorocarbons (HBFCs). 
Chemicals that have been listed as Class II are hydrochlorofluorocarbons 
(HCFCs).
    Example 2: An aerosol air freshener is labeled ``ozone friendly.'' 
Some of the product's ingredients are volatile organic compounds (VOCs) 
that may cause smog by contributing to ground-level ozone formation. The 
claim is likely to convey to consumers that the product is safe for the 
atmosphere as a whole, and is therefore, deceptive.
    Example 3: The seller of an aerosol product makes an unqualified 
claim that its product ``Contains no CFCs.'' Although the product does 
not contain CFCs, it does contain HCFC-22, another ozone depleting 
ingredient. Because the claim ``Contains no CFCs'' may imply to 
reasonable consumers that the product does not harm the ozone layer, the 
claim is deceptive.
    Example 4: A product is labeled ``This product is 95% less damaging 
to the ozone layer than past formulations that contained CFCs.'' The 
manufacturer has substituted HCFCs for CFC-12, and can substantiate that 
this substitution will result in 95% less ozone depletion. The qualified 
comparative claim is not likely to be deceptive.

[57 FR 36363, Aug. 13, 1992, as amended at 61 FR 53318, Oct. 11, 1996; 
61 FR 67109, Dec. 19, 1996; 63 FR 24248, May 1, 1998]



Sec.  260.8  Environmental assessment.

    (a) National Environmental Policy Act. In accordance with section 
1.83 of the FTC's Procedures and Rules of Practice \7\ and section 
1501.3 of the Council on Environmental Quality's regulations for 
implementing the procedural provisions of National Environmental Policy 
Act, 42 U.S.C. 4321 et seq. (1969), \8\ the Commission prepared an 
environmental assessment when the guides were issued in July 1992 for 
purposes of providing sufficient evidence and analysis to determine 
whether issuing the Guides for the Use of Environmental Marketing Claims 
required preparation of an environmental impact statement or a finding 
of no significant impact. After careful study, the Commission concluded 
that issuance of the Guides would not have a significant impact on the 
environment and that any such impact ``would be so uncertain that 
environmental analysis would be based on speculation.'' \9\ The 
Commission concluded that an environmental impact statement was 
therefore not required. The Commission based its conclusions on the 
findings in the environmental assessment that issuance of the guides 
would have no quantifiable environmental impact because the guides are 
voluntary in nature, do not preempt inconsistent state laws, are based 
on the FTC's deception policy, and, when used in conjunction with the 
Commission's policy of case-by-case enforcement, are intended to aid 
compliance with section 5(a) of the FTC Act as that Act applies to 
environmental marketing claims.
---------------------------------------------------------------------------

    \7\ 16 CFR 1.83.
    \8\ 40 CFR 1501.3.
    \9\ 16 CFR 1.83(a).
---------------------------------------------------------------------------

    (b) The Commission has concluded that the modifications to the 
guides in this part will not have a significant effect on the 
environment, for the same reasons that the issuance of the original 
guides in 1992 and the modifications to the guides in 1996 were deemed 
not to have a significant effect on the environment. Therefore, the 
Commission concludes that an environmental impact statement is not 
required in conjunction with the issuance of the 1998 modifications to 
the Guides for the Use of Environmental Marketing Claims.

[63 FR 24251, May 1, 1998, as amended at 63 FR 24248, May 1, 1998]

[[Page 201]]



        SUBCHAPTER C_REGULATIONS UNDER SPECIFIC ACTS OF CONGRESS





PART 300_RULES AND REGULATIONS UNDER THE WOOL PRODUCTS LABELING ACT 
OF 1939--Table of Contents




                               Definitions

Sec.
300.1 Terms defined.

                                Labeling

300.2 General requirement.
300.3 Required label information.
300.4 Registered identification numbers.
300.5 Required label and method of affixing.
300.6 Labels to be avoided.
300.7 English language requirement.
300.8 Use of fiber trademark and generic names.
300.9 Abbreviations, ditto marks, and asterisks.
300.10 Disclosure of information on labels.
300.11 Improper methods of labeling.
300.12 Labeling of pairs or products containing two or more units.
300.13 Name or other identification required to appear on labels.
300.14 Substitute label requirement.
300.15 Labeling of containers or packaging of wool products.
300.16 Ornamentation.
300.17 Use of the term ``all'' or ``100%''.
300.18 Use of name of specialty fiber.
300.19 Use of terms ``mohair'' and ``cashmere''.
300.20 Use of the terms ``virgin'' or ``new''.
300.21 Marking of samples, swatches, or specimens.
300.22 Sectional disclosure of content.
300.23 Linings, paddings, stiffening, trimmings and facings.
300.24 Representations as to fiber content.
300.25 Country where wool products are processed or manufactured.
300.25a Country of origin in mail order advertising.
300.26 Pile fabrics and products composed thereof.
300.27 Wool products containing superimposed or added fibers.
300.28 Undetermined quantities of reclaimed fibers.
300.29 Garments or products composed of or containing miscellaneous 
          cloth scraps.
300.30 Deceptive labeling in general.

                         Manufacturers' Records

300.31 Maintenance of records.

                               Guarantees

300.32 Form of separate guaranty.
300.33 Continuing guaranty filed with Federal Trade Commission.
300.34 Reference to existing guaranty on labels not permitted.

                                 General

300.35 Hearings under section 4(d) of the act.

    Authority: 15 U.S.C. 68 et seq. and 15 U.S.C. 70 et seq.

    Source: 6 FR 3426, July 15, 1941, unless otherwise noted.

                               Definitions



Sec.  300.1  Terms defined.

    (a) The term Act means the Wool Products Labeling Act of 1939 
(approved October 14, 1940, Public No. 850, 76th Congress, Third 
Session, 54 Stat. 1128, 15 U.S.C. 68 et. seq. as amended by Pub. L. 96-
242, 94 Stat. 344).
    (b) The terms rule, rules, regulations and rules and regulations 
mean the rules and regulations prescribed by the Commission pursuant to 
the Act.
    (c) The term ornamentation means any fibers or yarns imparting a 
visibly discernible pattern or design to a yarn or fabric.
    (d) The term fiber trademark means a word or words used by a person 
to identify a particular fiber produced or sold by him and to 
distinguish it from fibers of the same generic class produced or sold by 
others. Such term shall not include any trademark, product mark, house 
mark, trade name or other name which does not identify a particular 
fiber.
    (e) The terms required information or information required mean such 
information as is required to be disclosed on the required stamp, tag, 
label or other means of identification under the Act and regulations.
    (f) The definitions of terms contained in section 2 of the Act shall 
be applicable also to such terms when used in rules promulgated under 
the Act.
    (g) The term United States means the several States, the District of 
Columbia, and the territories and possessions of the United States.
    (h) The terms mail order catalog and mail order promotional material 
mean

[[Page 202]]

any materials, used in the direct sale or direct offering for sale of 
wool products, that are disseminated to ultimate consumers in print or 
by electronic means, other than by broadcast, and that solicit ultimate 
consumers to purchase such wool products by mail, telephone, electronic 
mail, or some other method without examining the actual product 
purchased.
    (i) The terms label, labels, labeled, and labeling mean the stamp, 
tag, label, or other means of identification, or authorized substitute 
therefore, required to be on or affixed to wool products by the Act or 
Regulations and on which the information required is to appear.
    (j) The terms invoice and invoice or other paper have the meaning 
set forth in Sec.  303.1(h) of this chapter.
    (k) The term trimmings has the meaning set forth in Sec.  303.12 of 
this chapter.

[29 FR 6623, May 21, 1964, as amended at 45 FR 44261, July 1, 1980; 50 
FR 15105, Apr. 17, 1985; 63 FR 7516, Feb. 13, 1998]

                                Labeling



Sec.  300.2  General requirement.

    Each and every wool product subject to the act shall be marked by a 
stamp, tag, label, or other means of identification, in conformity with 
the requirements of the act and the rules and regulations thereunder.



Sec.  300.3  Required label information.

    (a) The marking of wool products under the Act shall be in the form 
of a stamp, tag, label or other means of identification, showing and 
displaying upon the product the required information legibly, 
conspicuously, and nondeceptively. The information required to be shown 
and displayed upon the product in the stamp, tag, label, or other mark 
of identification, shall be that which is required by the Act and the 
rules and regulations thereunder, including the following:
    (1) The fiber content of the product specified in section 4(a)(2)(A) 
of the Act. The generic names and percentages by weight of the 
constituent fibers present in the wool product, exclusive of permissive 
ornamentation, shall appear on such label with any percentage of fiber 
or fibers designated as ``other fiber'' or ``other fibers'' as provided 
by section 4(a)(2)(A)(5) of the Act appearing last.
    (2) The maximum percentage of the total weight of the wool product 
of any nonfibrous loading, filling or adulterating matter as prescribed 
by section 4(a)(2)(B) of the Act.
    (3) The name or registered identification number issued by the 
Commission of the manufacturer of the wool product or the name or 
registered identification number of one or more persons subject to 
section 3 of the Act with respect to such wool product.
    (4) The name of the country where the wool product was processed or 
manufactured.
    (b) In disclosing the constituent fibers in information required by 
the Act and regulations in this part or in any non-required information, 
no fiber present in the amount of less than 5 percent shall be 
designated by its generic name or fiber trademark but shall be 
designated as ``other fiber,'' except that the percentage of wool or 
recycled wool shall always be stated, in accordance with section 
4(a)(2)(A) of the Act. When more than one of such fibers, other than 
wool or recycled wool, are present in amounts of less than 5 percent, 
they shall be designated in the aggregate as ``other fibers.'' Provided, 
however, that nothing in this section shall prevent the disclosure of 
any fiber present in the product which has a clearly established and 
definite functional significance when present in the amount stated, as 
for example:

``98% wool
2% nylon.''

[29 FR 6623, May 21, 1964, as amended at 45 FR 44261, July 1, 1980; 50 
FR 15105, Apr. 17, 1985; 63 FR 7516, Feb. 13, 1998]



Sec.  300.4  Registered identification numbers.

    (a) A registered identification number assigned by the Federal Trade 
Commission under and in accordance with the provisions of this section 
may be used upon the stamp, tag, label, or other mark of identification 
required under the Act to be affixed to a wool product, as and for the 
name of the person to whom such number has been assigned.

[[Page 203]]

    (b) Any manufacturer of a wool product or person subject to section 
3 of the Act with respect to such wool product, residing in the United 
States, may apply to the Federal Trade Commission for a registered 
identification number for use by the applicant on the stamp, tag, label, 
or other mark of identification required under the Act.
    (c) Registered identification numbers shall be used only by the 
person or firm to whom they are issued, and such numbers are not 
transferable or assignable. Registered identification numbers shall be 
subject to cancellation whenever any such number was procured or has 
been used improperly or contrary to the requirements of the Acts 
administered by the Federal Trade Commission, and regulations in this 
part, or when otherwise deemed necessary in the public interest. 
Registered identification numbers shall be subject to cancellation if 
the Commission fails to receive prompt notification of any change in 
name, business address, or legal business status of a person or firm to 
whom a registered identification number has been assigned, by 
application duly executed in the form set out in paragraph (e) of this 
section, reflecting the current name, business address, and legal 
business status of the person or firm.
    (d) Registered identification numbers assigned under this section 
may be used on labels required in labeling products subject to the 
provisions of the Fur Products Labeling Act and Textile Fiber Products 
Identification Act, and numbers previously assigned by the Commission 
under such Acts may be used as and for the required name in labeling 
under this Act. When so used by the person or firm to whom assigned, the 
use of the numbers shall be construed as identifying and binding the 
applicant as fully and in all respects as though assigned under the 
specific Act for which it is used.
    (e) The form to apply for a registered identification number or to 
update information pertaining to an existing number is found in Sec.  
303.20(d) of this chapter. The form is available upon request from the 
Textile Section, Enforcement Division, Federal Trade Commission, 600 
Pennsylvania Avenue, NW, Washington, DC 20580, or on the Internet at 
http://www.ftc.gov.

[29 FR 6623, May 21, 1964, as amended at 48 FR 12516, Mar. 25, 1983; 63 
FR 7516, Feb. 13, 1998; 63 FR 71582, Dec. 28, 1998; 65 FR 75156, Dec. 1, 
2000]



Sec.  300.5  Required label and method of affixing.

    (a) A label is required to be affixed to each wool product and, 
where required, to its package or container in a secure manner. Such 
label shall be conspicuous and shall be of such durability as to remain 
attached to the product and its package throughout any distribution, 
sale, resale and until sold and delivered to the ultimate consumer.
    (b) Each wool product with a neck must have a label disclosing the 
country of origin affixed to the inside center of the neck midway 
between the shoulder seams or in close proximity to another label 
affixed to the inside center of the neck. The fiber content and RN or 
name of the company may be disclosed on the same label as the country of 
origin or on another conspicuous and readily accessible label or labels 
on the inside or outside of the garment. On all other wool products, the 
required information shall be disclosed on a conspicuous and readily 
accessible label or labels on the inside or outside of the product. The 
country of origin disclosure must always appear on the front side of the 
label. Other required information may appear either on the front side or 
the reverse side of a label, provided that the information is 
conspicuous and readily accessible.
    (c) In the case of hosiery products, this section does not require 
affixing a label to each hosiery product contained in a package if, (1) 
such hosiery products are intended for sale to the ultimate consumer in 
such package, (2) such package has affixed to it a label bearing the 
required information for the hosiery products contained in the package, 
and (3) the information on the label affixed to the package is equally 
applicable to each wool product contained therein.

[50 FR 15105, Apr. 17, 1985, as amended at 63 FR 7516, Feb. 13, 1998]

[[Page 204]]



Sec.  300.6  Labels to be avoided.

    Stamps, tags, labels, or other marks of identification, which are 
insecurely attached, or which in the course of offering the product for 
sale, selling, reselling, transporting, marketing, or handling incident 
thereto are likely to become detached, indistinct, obliterated, 
illegible, mutilated, inaccessible, or inconspicuous, shall not be used.



Sec.  300.7  English language requirement.

    All words, statements and other information required by or under 
authority of the Act and the rules and regulations thereunder to appear 
on the stamp, tag, label, or other mark of identification, shall appear 
in the English language. If the product bears any stamp, tag, label, or 
mark of identification which contains any of the required information in 
a language other than English, all of the required information shall 
appear both in such other language and in the English language.



Sec.  300.8  Use of fiber trademark and generic names.

    (a) Except where another name is required or permitted under the Act 
or regulations, the respective common generic name of the fiber shall be 
used when naming fibers in the required information; as for example, 
``wool,'' ``recycled wool,'' ``cotton,'' ``rayon,'' ``silk,'' ``linen,'' 
``acetate,'' ``nylon,'' ``polyester.''
    (b) The generic names of manufactured fibers as heretofore or 
hereafter established in Sec.  303.7 of this part (Rule 7) of the 
regulations promulgated under the Textile Fiber Products Identification 
Act (72 Stat. 1717; 15 U.S.C. 70) shall be used in setting forth the 
required fiber content information as to wool products.
    (c) A non-deceptive fiber trademark may be used on a label in 
conjunction with the generic name of the fiber to which it relates. 
Where such a trademark is placed on a label in conjunction with the 
required information, the generic name of the fiber must appear in 
immediate conjunction therewith, and such trademark and generic name 
must appear in type or lettering of equal size and conspicuousness.
    (d) Where a generic name or a fiber trademark is used on any label, 
whether required or nonrequired, a full and complete fiber content 
disclosure with percentages shall be made on such label in accordance 
with the Act and regulations.
    (e) If a fiber trademark is not used in the required information, 
but is used elsewhere on the label as nonrequired information, the 
generic name of the fiber shall accompany the fiber trademark in legible 
and conspicuous type or lettering the first time the trademark is used.
    (f) No fiber trademark or generic name or word, coined word, symbol 
or depiction which connotes or implies any fiber trademark or generic 
name shall be used on any label or elsewhere on the product in such a 
manner as to be false, deceptive, or misleading as to fiber content, or 
to indicate directly or indirectly that a wool product is composed 
wholly or in part of a particular fiber, when such is not the case.
    (g) The term fur fiber may be used to describe the hair or fur fiber 
or mixtures thereof of any animal or animals other than the sheep, lamb, 
Angora goat, Cashmere goat, camel, alpaca, llama and vicuna. If the 
name, symbol, or depiction of any animal producing the hair or fur fiber 
is used on the stamp, tag, label, or other means of identification 
applied or affixed to the wool product, the percentage by weight of such 
hair or fur fiber in the total fiber weight of the wool product shall be 
separately stated in the required fiber content disclosure: Provided, 
That no such name, symbol or depiction shall be used where such hair or 
fur fiber is present in the amount of less than five per centum of the 
total fiber weight. No such name, symbol or depiction shall be used in 
such a way as to imply in any manner that a wool product contains the 
fur or hair of an animal when the hair or fur fiber of such animal is 
not present in the product in the amount of five per centum or more of 
the total fiber weight. The following are examples of fiber content 
disclosures under this paragraph:

60% Wool
40% Fur Fiber
 or
60% Wool
30% Fur Fiber
10% Angora Rabbit

[[Page 205]]

 or
100% Cashgora Hair
 or
100% Paco-Vicuna Hair

[29 FR 6624, May 21, 1964, as amended at 45 FR 44261, July 1, 1980; 63 
FR 7516, Feb. 13, 1998]



Sec.  300.9  Abbreviations, ditto marks, and asterisks.

    (a) In disclosing required information, words or terms shall not be 
designated by ditto marks or appear in footnotes referred to by 
asterisks or other symbols in required information, and shall not be 
abbreviated.
    (b) Where the generic name of a textile fiber is required to appear 
in immediate conjunction with a fiber trademark, a disclosure of the 
generic name by means of a footnote, to which reference is made by use 
of an asterisk or other symbol placed next to the fiber trademark, shall 
not be sufficient in itself to constitute compliance with the Act and 
regulations.

[29 FR 6624, May 21, 1964]



Sec.  300.10  Disclosure of information on labels.

    (a) Subject to the provisions of Sec.  300.5(b), the required 
information may appear on any label or labels attached to the product, 
including the care label required by 16 CFR part 423, provided all the 
pertinent requirements of the Act and regulations in this part are met 
and so long as the combination of required information and non-required 
information is not misleading. All parts of the required information 
shall be set forth in such a manner as to be clearly legible, 
conspicuous, and readily accessible to the prospective purchaser. All 
parts of the required fiber content information shall appear in type or 
lettering of equal size and conspicuousness.
    (b) Subject to the provisions of Sec.  300.8, any non-required 
information or representations placed on the product shall not minimize, 
detract from, or conflict with required information and shall not be 
false, deceptive, or misleading.

[63 FR 7517, Feb. 13, 1998]



Sec.  300.11  Improper methods of labeling.

    The stamp, tag, label, or other mark of identification required 
under the act, or the required information contained therein, shall not 
be minimized, rendered obscure or inconspicuous, or be so placed as 
likely to be unnoticed or unseen by purchasers and purchaser-consumers 
when the product is offered or displayed for sale or sold to purchasers 
or the consuming public, by reason of, among others:
    (a) Small or indistinct type.
    (b) Failure to use letters and numerals of equal size and 
conspicuousness in naming all fibers and percentages of such fibers as 
required by the act.
    (c) Insufficient background contrast.
    (d) Crowding, intermingling, or obscuring with designs, vignettes, 
or other written, printed or graphic matter.



Sec.  300.12  Labeling of pairs or products containing two or more units.

    (a) Where a wool product consists of two or more parts, units, or 
items of different fiber content, a separate label containing the 
required information shall be affixed to each of such parts, units, or 
items showing the required information as to such part, unit, or item, 
provided that where such parts, units, or items, are marketed or handled 
as a single product or ensemble and are sold and delivered to the 
ultimate consumer as a single product or ensemble, the required 
information may be set out on a single label in such a manner as to 
separately show the fiber composition of each part, unit, or item.
    (b) Where garments, wearing apparel, or other wool products are 
marketed or handled in pairs or ensembles of the same fiber content, 
only one unit of the pair or ensemble need be labeled with the required 
information when sold and delivered to the ultimate consumer.
    (c) Where parts or units of wool products of the types referred to 
in paragraphs (a) and (b) of this section are sold separately, such 
parts or units shall be labeled with the information required by the Act 
and regulations.

[29 FR 6624, May 21, 1964]

[[Page 206]]



Sec.  300.13  Name or other identification required to appear on labels.

    (a) The name required by the Act to be used on labels shall be the 
name under which the manufacturer of the wool product or other person 
subject to section 3 of the Act with respect to such product is doing 
business. Trade names, trade marks or other names which do not 
constitute the name under which such person is doing business shall not 
be used for required identification purposes.
    (b) Registered identification numbers, as provided for in Sec.  
300.4 of this part (Rule 4), may be used for identification purposes in 
lieu of the required name.

[29 FR 6625, May 21, 1964]



Sec.  300.14  Substitute label requirement.

    When necessary to avoid deception, the name of any person other than 
the manufacturer of the product appearing on the stamp, tag, label, or 
other mark of identification affixed to such product shall be 
accompanied by appropriate words showing that the product was not 
manufactured by such person; as for example:

Manufactured for: --------------
Distributed by: --------------
------------------ Distributors



Sec.  300.15  Labeling of containers or packaging of wool products.

    When wool products are marketed and delivered in a package which is 
intended to remain unbroken and intact until after delivery to the 
ultimate consumer, each wool product in the package, except hosiery, and 
the package shall be labeled with the required information. If the 
package is transparent to the extent it allows for a clear reading of 
the required information on the wool product, the package is not 
required to be labeled.

[50 FR 15106, Apr. 17, 1985]



Sec.  300.16  Ornamentation.

    (a) Where the wool product contains fiber ornamentation not 
exceeding 5 percent of the total fiber weight of the product and the 
stated percentages of fiber content of the product are exclusive of such 
ornamentation, the stamp, tag, label, or other means of identification 
shall contain a phrase or statement showing such fact; as for example:

50% Wool
25% Recycled Wool
25% Cotton
Exclusive of Ornamentation


The fiber content of such ornamentation may be disclosed where the 
percentage of the ornamentation in relation to the total fiber weight of 
the principal fiber or blend of fibers is shown; as for example:

70% Recycled Wool
30% Acetate
Exclusive of 4% Metallic Ornamentation

    (b) Where the fiber ornamentation exceeds five per centum it shall 
be included in the statement of required percentages of fiber content.
    (c) Where the ornamentation constitutes a distinct section of the 
product, sectional disclosure may be made in accordance with Sec.  
300.23 of this part (Rule 23).

[29 FR 6625, May 21, 1964, as amended at 45 FR 44261, July 1, 1980]



Sec.  300.17  Use of the term ``all'' or ``100%.''

    Where the fabric or product to which the stamp, tag, label, or mark 
of identification applies is composed wholly of one kind of fiber, 
either the word all or the term 100% may be used with the correct fiber 
name; as for example ``100% Wool,'' ``All Wool,'' ``100% Recycled 
Wool,'' ``All Recycled Wool.'' If any such product is composed wholly of 
one fiber with the exception of fiber ornamentation not exceeding 5%, 
such term ``all'' or ``100%'' as qualifying the name of the fiber may be 
used, provided it is immediately followed by the phrase ``exclusive of 
ornamentation,'' or by a phrase of like meaning; such as, for example:

All Wool--Exclusive of Ornamentation

 or

100% Wool--Exclusive of Ornamentation.

[45 FR 44261, July 1, 1980]



Sec.  300.18  Use of name of specialty fiber.

    (a) In setting forth the required fiber content of a product 
containing any of the specialty fibers named in Section

[[Page 207]]

2(b) of the Act, the name of the specialty fiber present may be used in 
lieu of the word ``wool,'' provided the percentage of each named 
specialty fiber is given, and provided further that the name of the 
specialty fiber so used is qualified by the word ``recycled'' when the 
fiber referred to is ``recycled wool'' as defined in the Act. The 
following are examples of fiber content designation permitted under this 
rule:

55% Alpaca--45% Camel Hair
50% Recycled Camel Hair--50% Wool
60% Recycled Alpaca--40% Rayon
35% Recycled Llama--35% Recycled Vicuna--30% Cotton
60% Cotton--40% Recycled Llama.

    (b) Where an election is made to use the name of a specialty fiber 
in lieu of the word ``wool'' in describing such specialty fiber, such 
name shall be used at any time reference is made to the specialty fiber 
either in required or nonrequired information. The name of the specialty 
fiber or any word, coined word, symbol or depiction connoting or 
implying the presence of such specialty fiber shall not be used in 
nonrequired information on the required label or on any secondary or 
auxiliary label attached to the wool product if the name of such 
specialty fiber does not appear in the required fiber content 
disclosure.

[29 FR 6625, May 21, 1964, as amended at 45 FR 44262, July 1, 1980]



Sec.  300.19  Use of terms ``mohair'' and ``cashmere.''

    (a) In setting forth the required fiber content of a product 
containing hair of the Angora goat known as mohair or containing hair or 
fleece of the Cashmere goat known as cashmere, the term mohair or 
cashmere, respectively, may be used for such fiber in lieu of the word 
``wool,'' provided the respective percentage of each such fiber 
designated as ``mohair'' or ``cashmere'' is given, and provided further 
that such term ``mohair'' or ``cashmere'' where used is qualified by the 
word ``recycled'' when the fiber referred to is ``recycled wool'' as 
defined in the Act. The following are examples of fiber content 
designations permitted under this rule:

50% Mohair--50% Wool
60% Recycled Mohair--40% Cashmere
60% Cotton--40% Recycled Cashmere.

    (b) Where an election is made to use the term ``mohair'' or 
``cashmere'' in lieu of the term wool as permitted by this section, the 
appropriate designation of ``mohair'' or ``cashmere'' shall be used at 
any time reference is made to such fiber in either required or 
nonrequired information. The term ``mohair'' or ``cashmere'' or any 
words, coined words, symbols or depictions connoting or implying the 
presence of such fibers shall not be used in nonrequired information on 
the required label or on any secondary or auxiliary label attached to 
the wool product if the term ``mohair'' or ``cashmere'' as the case may 
be does not appear in the required fiber content disclosure.

[29 FR 6625, May 21, 1964, as amended at 45 FR 44262, July 1, 1980]



Sec.  300.20  Use of the terms ``virgin'' or ``new.''

    The terms ``virgin'' or ``new'' as descriptive of a wool product, or 
any fiber or part thereof, shall not be used when the product or part so 
described is not composed wholly of new or virgin fiber which has never 
been reclaimed from any spun, woven, knitted, felted, braided, bonded, 
or otherwise manufactured or used product.

[29 FR 6625, May 21, 1964]



Sec.  300.21  Marking of samples, swatches or specimens.

    Where samples, swatches or specimens of wool products subject to the 
act were used to promote or effect sales of such wool products in 
commerce, said samples, swatches and specimens, as well as the products 
themselves, shall be labeled or marked to show their respective fiber 
contents and other information required by law.

[6 FR 3426, July 15, 1941. Redesignated at 63 FR 7517, Feb. 13, 1998]



Sec.  300.22  Sectional disclosure of content.

    (a) Permissive. Where a wool product is composed of two or more 
sections which are of different fiber composition, the required 
information as to fiber content may be separated on the same label in 
such manner as to show the fiber composition of each section.

[[Page 208]]

    (b) Mandatory. The disclosure as above provided shall be made in all 
instances where such form of marking is necessary to avoid deception.

[29 FR 6626, May 21, 1964. Redesignated at 63 FR 7517, Feb. 13, 1998]



Sec.  300.23  Linings, paddings, stiffening, trimmings and facings.

    (a) In labeling or marking garments or articles of apparel which are 
wool products, the fiber content of any linings, paddings, stiffening, 
trimmings or facings of such garments or articles of apparel shall be 
given and shall be set forth separately and distinctly in the stamp, 
tag, label, or other mark of identification of the products.
    (1) If such linings, trimmings or facings contain, purport to 
contain or are represented as containing wool, or recycled wool; or
    (2) If such linings are metallically coated, or coated or laminated 
with any substance for warmth, or if such linings are composed of pile 
fabrics, or any fabrics incorporated for warmth or represented directly 
or by implication as being incorporated for warmth, which articles the 
Commission finds constitute a class of articles which is customarily 
accompanied by express or implied representations of fiber content; or
    (3) If any express or implied representations of fiber content of 
any of such linings, paddings, stiffening, trimmings or facings are 
customarily made.
    (b) In the case of garments which contain interlinings, the fiber 
content of such interlinings shall be set forth separately and 
distinctly as part of the required information on the stamp, tag, label, 
or other mark of identification of such garment. For purposes of this 
paragraph (b) the term interlining means any fabric or fibers 
incorporated into a garment or article of wearing apparel as a layer 
between an outershell and an inner lining.
    (c) In the case of wool products which are not garments or articles 
of apparel, but which contain linings, paddings, stiffening, trimmings, 
or facings, the stamp, tag, label, or other mark of identification of 
the product shall show the fiber content of such linings, paddings, 
stiffening, trimmings or facings, set forth separately and distinctly in 
such stamp, tag, label, or other mark of identification.
    (d) Wool products which are or have been manufactured for sale or 
sold for use as linings, interlinings, paddings, stiffening, trimmings 
or facings, but not contained in a garment, article of apparel, or other 
product, shall be labeled or marked with the required information as in 
the case of other wool products.

[29 FR 6626, May 21, 1964, as amended at 45 FR 44262, July 1, 1980. 
Redesignated at 63 FR 7517, Feb. 13, 1998]



Sec.  300.24  Representations as to fiber content.

    (a) Words, coined words, symbols, or depictions which constitute or 
imply the name or designation of a fiber which is not present in the 
product shall not appear on labels. Any word or coined word which is 
phonetically similar to the name or designation of a fiber or which is 
only a slight variation in spelling from the name or designation of a 
fiber shall not be used in such a manner as to represent or imply that 
such fiber is present in the product when the fiber is not present as 
represented.
    (b) Where a word, coined word, symbol or depiction which connotes or 
implies the presence of a fiber is used on any label, whether required 
or nonrequired, a full and complete fiber content disclosure with 
percentages shall be made on such label in accordance with the Act and 
regulations.

[29 FR 6626, May 21, 1964, as amended at 50 FR 15106, Apr. 17, 1985. 
Redesignated at 63 FR 7517, Feb. 13, 1998]



Sec.  300.25  Country where wool products are processed or manufactured.

    (a) In addition to the other information required by the Act and 
Regulations:
    (1) Each imported wool product shall be labeled with the name of the 
country where such imported product was processed or manufactured;
    (2) Each wool product completely made in the United States of 
materials that were made in the United States shall be labeled using the 
term Made in U.S.A. or some other clear and equivalent term.

[[Page 209]]

    (3) Each wool product made in the United States, either in whole or 
in part of imported materials, shall contain a label disclosing these 
facts; for example:

``Made in USA of imported fabric''

 or

``Knitted in USA of imported yarn'' and

    (4) Each wool product partially manufactured in a foreign country 
and partially manufactured in the United States shall contain on a label 
the following information:
    (i) The manufacturing process in the foreign country and in the USA; 
for example:

``Imported cloth, finished in USA''

 or

``Sewn in USA of imported components''

 or

``Made in [foreign country], finished in USA''

 or

``Scarf made in USA of fabric made in China''

 or

``Comforter Filled, Sewn and Finished in the U.S. With Shell Made in 
China''

 or

``Made in [Foreign Country]/fabric made in USA''

 or

``Knit in USA, assembled in [Foreign Country]''.

    (ii) When the U.S. Customs Service requires an origin label on the 
unfinished product, the manufacturing processes as required in paragraph 
(a)(4)(i) of this section or the name of the foreign country required by 
Customs, for example:

``Made in (foreign country)''

    (b) For the purpose of determining whether a product should be 
marked under paragraphs (a) (2), (3), or (4) of this section, a 
manufacturer needs to consider the origin of only those materials that 
are covered under the Act and that are one step removed from that 
manufacturing process. For example, a yarn manufacturer must identify 
fiber if it is imported, a cloth manufacturer must identify imported 
yarn and a household product manufacturer must identify imported cloth 
or imported yarn for household products made directly from yarn, or 
imported fiber used as filling for warmth.
    (c) The term country means the political entity known as a nation. 
Except for the United States, colonies, possessions or protectorates 
outside the boundaries of the mother country shall be considered 
separate countries, and the name thereof shall be deemed acceptable in 
designating the country where the wool product was processed or 
manufactured unless the Commission shall otherwise direct.
    (d) The country where the imported wool product was principally made 
shall be considered to be the country where such wool product was 
processed or manufactured. Further work or material added to the wool 
product in another country must effect a basic change in form in order 
to render such other country the place where such wool product was 
processed or manufactured.
    (e) The English name of the country where the imported wool product 
was processed or manufactured shall be used. The adjectival form of the 
name of the country will be accepted as the name of the country where 
the wool product was processed or manufactured, provided the adjectival 
form of the name does not appear with such other words so as to refer to 
a kind of species of product. Variant spellings which clearly indicate 
the English name of the country, such as Brasil for Brazil and Italie 
for Italy, are acceptable. Abbreviations which un mis taken ly indicate 
the name of a country, such as Gt. Britain for Great Britain, are 
acceptable.
    (f) Nothing in this Rule shall be construed as limiting in any way 
the information required to be disclosed on labels under the provisions 
of any Tariff Act of the United States or regulations prescribed by the 
Secretary of the Treasury.

[50 FR 15106, Apr. 17, 1985. Redesignated and amended at 63 FR 7517, 
Feb. 13, 1998; 65 FR 75156, Dec. 1, 2000]



Sec.  300.25a  Country of origin in mail order advertising.

    When a wool product is advertised in any mail order catalog or mail 
order promotional material, the description of such product shall 
contain a clear

[[Page 210]]

and conspicuous statement that the product was either made in U.S.A., 
imported, or both. Other words or phrases with the same meaning may be 
used. The statement of origin required by this section shall not be 
inconsistent with the origin labeling of the product being advertised.

[50 FR 15106, Apr. 17, 1985. Redesignated at 63 FR 7517, Feb. 13, 1998]



Sec.  300.26  Pile fabrics and products composed thereof.

    The fiber content of pile fabrics or products made thereof may be 
stated in the label or mark of identification in such segregated form as 
will show the fiber content of the face or pile and of the back or base, 
with the percentages of the respective fibers as they exist in the face 
or pile and in the back or base: Provided, That in such disclosure the 
respective percentages of the face and the back be given in such manner 
as will show the ratio between the face and the back. Examples of the 
form of marking pile fabrics as to fiber content provided for in this 
section are as follows:

100% Wool Pile
100% Cotton Back
(Back constitutes 60% of fabric and pile 40%)
Pile--60% Recycled Wool, 40% Wool
Back--70% Cotton, 30% Rayon
(Pile constitutes 60% of fabric and back 40%).

[6 FR 3426, July 15, 1941, as amended at 45 FR 44262, July 1, 1980]



Sec.  300.27  Wool products containing superimposed or added fibers.

    Where a wool product is made wholly of one fiber or a blend of 
fibers with the exception of an additional fiber in minor proportion 
superimposed or added in certain separate and distinct areas or sections 
for reinforcing or other useful purposes, the product may be designated 
according to the fiber content of the principal fiber or blend of 
fibers, with an excepting naming the superimposed or added fiber, giving 
the percentage thereof in relation to the total fiber weight of the 
principal fiber or blend of fibers, and indicating the area or section 
which contains the superimposed or added fiber. An example of this type 
of fiber content disclosure, as applied to products having reinforcing 
fibers added to a particular area or section, is as follows:

55% Recycled Wool
45% Rayon
Except 5% Nylon added to toe and heel

[29 FR 6626, May 21, 1964, as amended at 45 FR 44262, July 1, 1980]



Sec.  300.28  Undetermined quantities of reclaimed fibers.

    (a) Where a wool product is composed in part of various man-made 
fibers recovered from textile products containing underdetermined 
qualities of such fibers, the percentage content of the respective 
fibers recovered from such products may be disclosed on the required 
stamp, tag, or label, in aggregate form as ``man-made fibers'' followed 
by the naming of such fibers in the order of their predominance by 
weight, as for example:

60% Wool
40% Man-made fibers
Rayon
Acetate
Nylon

    (b) Where a wool product is composed in part of wool, or recycled 
wool and in part of unknown and, for practical purposes, undeterminable 
non-woolen fibers reclaimed from any spun, woven, knitted, felted, 
braided, bonded or otherwise manufactured or used product, the required 
fiber content disclosure may, when truthfully applicable, in lieu of the 
fiber content disclosure otherwise required by the Act and regulations, 
set forth (1) the percentages of wool or recycled wool, and (2) the 
generic names and the percentages of all other fibers whose presence is 
known or practically ascertainable and (3) the percentage of the unknown 
and undeterminable reclaimed fibers, designating such reclaimed fibers 
as ``unknown reclaimed fibers'' or ``undetermined reclaimed fibers,'' as 
for example:

75% Recycled Wool--25% Unknown Reclaimed Fibers.
35% recycled Wool--30% Acetate--15% Cotton--20% Undetermined Reclaimed 
Fibers.


In making the required fiber content disclosure any fibers referred to 
as ``unknown reclaimed fibers'' or ``undetermined reclaimed fibers'' 
shall be listed last.

[[Page 211]]

    (c) The terms unknown recycled fibers and undetermined recycled 
fibers may be used in describing the unknown and undeterminable 
reclaimed fibers referred to in paragraph (b) of this rule in lieu of 
the terms specified therein, provided, however, That the same standard 
is used in determining the applicability of the term recycled as is used 
in defining ``recycled wool'' in section 2(c) of the Act.
    (d) For purposes of this rule undetermined or unascertained amounts 
of wool or recycled wool may be classified and designated as recycled 
wool.
    (e) Nothing contained in this rule shall excuse a full and accurate 
disclosure of fiber content with correct percentages if the same is 
known or practically ascertainable, or permit a deviation from the 
requirements of section 4(a)(2)(A) of the Act with respect to products 
not labeled under the provisions of this rule or permit a higher 
classification of wool or recycled wool than that provided by Section 2 
of the Act.

[29 FR 6626, May 21, 1964, as amended at 45 FR 44262, July 1, 1980; 45 
FR 49542, July 25, 1980]



Sec.  300.29  Garments or products composed of or containing 
miscellaneous cloth scraps.

    (a) For wool products which consist of, or are made from, 
miscellaneous cloth scraps comprising manufacturing by-products and 
containing various fibers of undetermined percentages, the following 
form of disclosure as to fiber content of such wool products, where 
truthfully appliable and with appropriate percentage figure inserted, 
may be used in the stamp, tag, label, or mark of identification of such 
product:
    (1) Where the product contains chiefly cotton as well as woolen 
fibers in the minimum percentage designated for recycled wool:

Made of Miscellaneous Cloth Scraps Composed Chiefly of Cotton With 
Minimum of ----% Recycled Wool.

    (2) Where the product contains chiefly rayon as well as woolen 
fibers in the minimum percentage designated for recycled wool:

Made of Miscellaneous Cloth Scraps Composed Chiefly of Rayon With 
Minimum of ----% Recycled Wool.

    (3) Where the product is composed chiefly of a mixture of cotton and 
rayon as well as woolen fibers in the minimum percentage designated for 
recycled wool:

Made of Miscellaneous Cloth Scraps Composed Chiefly of Cotton and Rayon 
With Minimum of ----% Recycled Wool.

    (4) Where the product contains chiefly woolen fibers with the 
balance of undetermined mixtures of cotton, rayon or other non-woolen 
fibers:

Made of Miscellaneous Cloth Scraps Containing Cotton, Rayon and Other 
Non-Woolen Fibers, With Minimum of ----% Recycled Wool.

    (b) Where the cotton or rayon content or the non-woolen fiber 
content mentioned in such forms of disclosure is not known to comprise 
as much as 50% of the fiber content of the product, the word ``chiefly'' 
in the respective form of disclosure specified in this section shall be 
omitted.
    (c) The words ``Contents are'' may be used in the above-mentioned 
forms of marking in lieu of the words ``Made of'' where appropriate to 
the nature of the product.
    (d) For purposes of this rule, undetermined or unascertained amounts 
of wool or recycled wool which may be contained in the product may be 
classified and designated as recycled wool.

[6 FR 3426, July 15, 1941, as amended at 45 FR 44262, July 1, 1980]



Sec.  300.30  Deceptive labeling in general.

    Products subject to the act shall not bear, nor have used in 
connection therewith, any stamp, tag, label, mark or representation 
which is false, misleading or deceptive in any respect.

                         Manufacturers' Records



Sec.  300.31  Maintenance of records.

    (a) Pursuant to the provisions of section 6 of the Act, every 
manufacturer of a wool product subject to the Act, irrespective of 
whether any guaranty has been given or received, shall maintain records 
showing the information required by the Act and Regulations with respect 
to all such wool products made

[[Page 212]]

by such manufacturer. Such records shall show:
    (1) The fiber content of the product specified in section 4(a)(2)(A) 
of the Act.
    (2) The maximum percentage of the total weight of the wool product 
of any non-fibrous loading, filling or adulterating matter as prescribed 
by section 4(a)(2)(B) of the Act.
    (3) The name, or registered identification number issued by the 
Commission, of the manufacturer of the wool product or the name or 
registered identification number of one or more persons subject to 
section 3 of the Act with respect to such wool product.
    (4) The name of the country where the wool product was processed or 
manufactured as prescribed by sections 300.25a and/or .25b.
    (b) Any person substituting labels shall keep such records as will 
show the information on the label removed and the name or names of the 
person or persons from whom the wool product was received.
    (c) The purpose of these records is to permit a determination that 
the requirements of the Act and Regulations have been met and to 
establish a traceable line of continuity from raw material through 
processing to finished product. The records shall be preserved for at 
least three years.

[53 FR 31314, Aug. 18, 1988]

                               Guaranties



Sec.  300.32  Form of separate guaranty.

    (a) The following are suggested forms of separate guaranties under 
section 9 of the Act which may be used by a guarantor residing in the 
United States on or as part of an invoice or other paper relating to the 
marketing or handling of any wool products listed and designated therein 
and showing the date of such invoice or other paper and the signature 
and address of the guarantor:
    (1) General form.

    We guarantee that the wool products specified herein are not 
misbranded under the provisions of the Wool Products Labeling Act and 
rules and regulations thereunder.

    (2) Guaranty based on guaranty.

    Based upon a guaranty received, we guarantee that the wool products 
specified herein are not misbranded under the provisions of the Wool 
Products Labeling Act and rules and regulations thereunder.

    Note: The printed name and address on the invoice or other paper 
will suffice to meet the signature and address requirements.

    (b) The mere disclosure of required information including the fiber 
content of wool products on a label or on an invoice or other paper 
relating to its marketing or handling shall not be considered a form of 
separate guaranty.

[29 FR 6627, May 21, 1964]



Sec.  300.33  Continuing guaranty filed with Federal Trade Commission.

    (a)(1) Under section 9 of the Act any person residing in the United 
States and marketing or handling wool products may file a continuing 
guaranty with the Federal Trade Commission.
    (2) When filed with the Commission a continuing guaranty shall be 
fully executed in duplicate. Forms for use in preparing continuing 
guaranties will be supplied by the Commission upon request.
    (3) Continuing guaranties filed with the Commission shall continue 
in effect until revoked. The guarantor shall promptly report any change 
in business status to the Commission.
    (b) The prescribed form for a continuing guaranty is found in Sec.  
303.38(b) of this chapter. The form is available upon request from the 
Textile Section, Enforcement Division, Federal Trade Commission, 600 
Pennsylvania Avenue, NW, Washington, DC 20580.
    (c) Any person who has a continuing guaranty on file with the 
Commission may, during the effective dates of the guaranty, give notice 
of such fact by setting forth on the invoice or other paper covering the 
marketing or handling of the product guaranteed the following:

    Continuing Guaranty under the Wool Products Labeling Act filed with 
the Federal Trade Commission.

    (d) Any person who falsely represents that he has a continuing 
guaranty on file with the Federal Trade Commission shall be deemed to 
have furnished

[[Page 213]]

a false guaranty under section 9(b) of the Act.

[29 FR 6627, May 21, 1964, as amended at 48 FR 12517, Mar. 25, 1983; 63 
FR 7517, Feb. 13, 1998; 63 FR 71583, Dec. 28, 1998]



Sec.  300.34  Reference to existing guaranty on labels not permitted.

    No representation or suggestion that a wool product is guaranteed 
under the act by the Government, or any branch thereof shall be made on 
or in the stamp, tag, label, or other mark of identification, applied or 
affixed to wool products.

                                 General



Sec.  300.35  Hearings under section 4(d) of the act.

    Hearings under section 4(d) of the act will be held when deemed by 
the Commission to be in the public interest. Interested persons may file 
applications for such hearings. Such applications shall be filed in 
quadruplicate and shall contain a detailed technical description of the 
class or classes of articles or products regarding which applicant 
requests a determination and announcement by the Commission concerning 
express or implied representations of fiber content of articles or 
concerning insignificant or inconsequential textile content of products.

(Sec. 4(d), 54 Stat. 1129; 15 U.S.C. 68b(d))



PART 301_RULES AND REGULATIONS UNDER FUR PRODUCTS LABELING ACT--Table of Contents




                               Name Guide

Sec.
301.0 Fur products name guide.

                               Regulations

301.1 Terms defined.
301.2 General requirements.
301.3 English language requirements.
301.4 Abbreviations or ditto marks prohibited.
301.5 Use of Fur Products Name Guide.
301.6 Animals not listed in Fur Products Name Guide.
301.7 Describing furs by certain breed names prohibited.
301.8 Use of terms ``Persian Lamb,'' ``Broadtail Lamb,'' and ``Persian-
          broadtail Lamb'' permitted.
301.9 Use of terms ``Mouton Lamb'' and ``Shearling Lamb'' permitted.
301.10 Use of term ``Broadtail-processed Lamb'' permitted.
301.11 Fictitious or non-existing animal designations prohibited.
301.12 Country of origin of imported furs.
301.13 Fur products having furs with different countries of origin.
301.14 Country of origin of used furs.
301.15 Designation of section producing domestic furs permitted.
301.16 Disclosure of origin of certain furs raised or taken in United 
          States.
301.17 Misrepresentation of origin of furs.
301.18 Passing off domestic furs as imported furs prohibited.
301.19 Pointing, dyeing, bleaching or otherwise artificially coloring.
301.20 Fur products composed of pieces.
301.21 Disclosure of used furs.
301.22 Disclosure of damaged furs.
301.23 Second-hand fur products.
301.24 Repairing, restyling and remodeling fur products for consumer.
301.25 Name required to appear on labels and invoices.
301.26 Registered identification numbers.
301.27 Label and method of affixing.
301.28 Labels to be avoided.
301.29 Requirements in respect to disclosure on label.
301.30 Arrangement of required information on label.
301.31 Labeling of fur products consisting of two or more units.
301.32 Fur product containing material other than fur.
301.33 Labeling of samples.
301.34 Misbranded or falsely invoiced fur products.
301.35 Substitution of labels.
301.36 Sectional fur products.
301.37 Manner of invoicing furs and fur products.
301.38 Advertising of furs and fur products.
301.39 Exempted fur products.
301.40 Item number or mark to be assigned to each fur product.
301.41 Maintenance of records.
301.42 Deception as to nature of business.
301.43 Use of deceptive trade or corporate names, trademarks or graphic 
          representations prohibited.
301.44 Misrepresentation of prices.
301.45 Representations as to construction of fur products.
301.46 Reference to guaranty by Government prohibited.
301.47 Form of separate guaranty.
301.48 Continuing guaranty filed with Federal Trade Commission.
301.48a Guaranties not received in good faith.
301.49 Deception in general.

    Authority: 15 U.S.C. 69 et seq.

[[Page 214]]

                               Name Guide



Sec.  301.0  Fur products name guide.

                                                   Name Guide
----------------------------------------------------------------------------------------------------------------
               Name                         Order                  Family                  Genus-species
----------------------------------------------------------------------------------------------------------------
Alpaca............................  Ungulata.............  Camelidae............  Lama pacos.
Antelope..........................  ......do.............  Bovidae..............  Hippotragus niger and Antilope
                                                                                   cervicapra.
Badger............................  Carnivora............  Mustelidae...........  Taxida sp. and Meles sp.
Bassarisk.........................  ......do.............  Procyonidae..........  Bassariscus astutus.
Bear..............................  ......do.............  Ursidae..............  Ursus sp.
Bear, Polar.......................  ......do.............  ......do.............  Thalarctos sp.
Beaver............................  Rodentia.............  Castoridae...........  Castor canadensis.
Burunduk..........................  ......do.............  Sciuridae............  Eutamias asiaticus.
Calf..............................  Ungulata.............  Bovidae..............  Bos taurus.
Cat, Caracal......................  Carnivora............  Felidae..............  Caracal caracal.
Cat, Domestic.....................  ......do.............  ......do.............  Felis catus.
Cat, Lynx.........................  ......do.............  ......do.............  Lynx refus.
Cat, Manul........................  ......do.............  ......do.............  Felis manul.
Cat, Margay.......................  ......do.............  ......do.............  Felis wiedii.
Cat, Spotted......................  ......do.............  ......do.............  Felis sp. (South America).
Cat, Wild.........................  ......do.............  ......do.............  Felis catus and Felis lybica.
Cheetah...........................  ......do.............  ......do.............  Acinonyx jubatus.
Chinchilla........................  Rodentia.............  Chinchillidae........  Chinchilla chinchilla.
Chipmunk..........................  ......do.............  Sciuridae............  Eutamias sp.
Civet.............................  Carnivora............  Viverridae...........  Viverra sp., Viverricula sp.,
                                                                                   Paradoxurus sp., Paguma sp.,
                                                                                   and Herpestes sp.
Desman............................  Insectivora..........  Talpidae.............  Desmana moschata and Galemys
                                                                                   pyrenaicus.
Dog...............................  Carnivora............  Canidae..............  Canis familiaris.
Ermine............................  ......do.............  Mustelidae...........  Mustela erminea.
Fisher............................  ......do.............  ......do.............  Martes pennanti.
Fitch.............................  ......do.............  ......do.............  Mustela putorius.
Fox...............................  ......do.............  Canidae..............  Vulpes fulva, Vulpes, vulpes,
                                                                                   and Vulpes macrotis.
Fox, Blue.........................  ......do.............  ......do.............  Alopex sp.
Fox, Grey.........................  ......do.............  ......do.............  Urocyon cinereoargenteus and
                                                                                   Urocyon littoralis.
Fox, Kit..........................  ......do.............  ......do.............  Vulpes velox.
Fox, White........................  Carnivora............  Canidae..............  Alpoex sp.
Genet.............................  ......do.............  Viverridae...........  Genetta genetta.
Goat..............................  Ungulata.............  Bovidae..............  Cpara prisca.
Guanaco, or its young, the          ......do.............  Camelidae............  Lama guanicoe.
 Guanaquito..
Hamster...........................  Rodentia.............  Cricetidae...........  Cricetus cricetus.
Hare..............................  ......do.............  Leporidae............  Lepus sp. and Lepus europaeus
                                                                                   occidentalis.
Jackal............................  Carnivora............  Canidae..............  Canis aureus and Canis
                                                                                   adustus.
Jackal, Cape......................  ......do.............  ......do.............  Canis mesomelas.
Jaguar............................  ......do.............  Felidae..............  Felis onca.
Jaguarondi........................  ......do.............  ......do.............  Felis yagouaroundi.
Kangaroo..........................  Marsupialia..........  Macropodidae.........  Macropus sp.
Kangaroo-rat......................  ......do.............  ......do.............  Bettongia sp.
Kid...............................  Ungulata.............  Bovidae..............  Capra prisca.
Kinkajou..........................  Carnivora............  Procyonidae..........  Potos flavus.
Koala.............................  Marsupialia..........  Phasocolarctidae.....  Phascolarctos cinereus.
Kolinsky..........................  Carnivora............  Mustelidae...........  Mustela sibirica.
Lamb..............................  Ungulata.............  Bovidae..............  Ovis aries.
Leopard...........................  Carnivora............  Felidae..............  Felis pardus.
Llama.............................  Ungulata.............  Cemelidae............  Lama glama.
Lynx..............................  Carnivora............  Felidae..............  Lynx canadensis and Lynx lynx.
Marmot............................  Rodentia.............  Scinridae............  Marmota bobak.
Marten, American..................  Carnivora............  Mustelidae...........  Martes americana and Martes
                                                                                   caurina.
Marten, Baum......................  ......do.............  ......do.............  Martes martes.
Marten, Japanese..................  ......do.............  ......do.............  Martes melampus.
Marten, Stone.....................  ......do.............  ......do.............  Martes foina.
Mink..............................  ......do.............  ......do.............  Mustela vison and Mustela
                                                                                   lutreola.
Mole..............................  Insectivora..........  Talpidae.............  Talpa sp.
Monkey............................  Primates.............  Colobidae............  Colobus polykomos.
Muskrat...........................  Rodentia.............  Muridae..............  Ondatra zibethicus.
Nutria............................  ......do.............  Capromyidae..........  Myocastor coypus.
Ocelot............................  Carnivora............  Felidae..............  Felis pardalis.
Opossum...........................  Marsupialia..........  Didelphiidae.........  Didelphis sp.
Oppossum, Australian..............  ......do.............  Phalangeridae........  Trichosurus vulpecula.
Opossum, Ring-tail................  ......do.............  ......do.............  Pseudocheirus sp.
Oppossum, South American..........  ......do.............  Didelphiidae.........  Lutreolina crassicaudata.

[[Page 215]]

 
Opossum, Water....................  ......do.............  ......do.............  Chironectes minimus.
Otter.............................  Carnivora............  Mustelidae...........  Lutra canadensis, Pteronura
                                                                                   brasitionsis, Lutra annectens
                                                                                   and Lutra lutra.
Otter, Sea........................  ......do.............  ......do.............  Enhydra lutris.
Pahmi.............................  ......do.............  ......do.............  Helictis moschata and Helictis
                                                                                   personata.
Panda.............................  ......do.............  Procyonidae..........  Ailurus fulgens.
Peschanik.........................  Rodentia.............  Sciuridae............  Citellus fulvus.
Pony..............................  Ungulata.............  Equidae..............  Equus caballus.
Rabbit............................  Rodentia.............  Leporidae............  Oryctolagus cuniculus.
Raccoon...........................  Carnivora............  Procyonidae..........  Procyon lotor and Procyon
                                                                                   cancrivorus.
Raccoon, Asiatic..................  ......do.............  Canidae..............  Nyctereutes procyonoidos.
Raccoon, Mexican..................  ......do.............  ......do.............  Nasua sp.
Reindeer..........................  Ungulata.............  Cervidae.............  Rangifer tarandus.
Sable.............................  Carnivora............  Mustelidae...........  Martes zibellina.
Sable, American...................  ......do.............  ......do.............  Martes americana and Martes
                                                                                   caurina.
Seal, Fur.........................  Pinnipedia...........  Otariidae............  Callorhinus ursinus and
                                                                                   Arctocephalus sp.
Seal, Hair........................  ......do.............  Phocidae.............  Phoca sp.
Seal, Roc.........................  ......do.............  Otariidae............  Otaria flavescens.
Sheep.............................  Ungulata.............  Bovidae..............  Ovis aries.
Skunk.............................  Carnivora............  Mustelidae...........  Mephitis mephitis, Mephitis
                                                                                   macroura, Conepatus
                                                                                   semistriatus and Conepatus
                                                                                   sp.
Skunk, Spotted....................  ......do.............  ......do.............  Spilogale sp.
Squirrel..........................  Rodentia.............  Sciuridae............  Sciurus vulgaris.
Squirrel, Flying..................  ......do.............  ......do.............  Eupetaurus cinereus, Pteromys
                                                                                   volans and Petaurista
                                                                                   leucogenys.
Susilk............................  ......do.............  ......do.............  Citellus citellus, Citellus
                                                                                   rufescens and Citellus
                                                                                   suslica.
Vicuna............................  Ungulata.............  Camelidae............  Vicugna vicugna.
Viscacha..........................  Rodentia.............  Chinchillidae........  Ligidium viscacia.
Wallaby...........................  Marsupialia..........  Macropodidae.........  Wallabia sp., Petrogale sp.,
                                                                                   and Thylogale sp.
Weasel............................  Carnivora............  Mustelidae...........  Mustela frenata.
Weasel, Chinese...................  ......do.............  ......do.............  Mustela sibirica.
Weasel, Japanese..................  ......do.............  ......do.............  Mustela itatsi (also
                                                                                   classified as Mustela
                                                                                   sibirica itatsi).
Weasel, Manchurian................  Carnivora............  Mustelidae...........  Mustela altaica and Mustela
                                                                                   rixosa.
Wolf..............................  ......do.............  Canidae..............  Canis lupus and Canis niger.
Wolverine.........................  ......do.............  Mustelidae...........  Gulo luscus and Gulo gulo.
Wombat............................  Marsupialia..........  Vombatidae...........  Vombatus sp.
Woodchuck.........................  Rodentia.............  Sciuridae............  Marmota monax.
----------------------------------------------------------------------------------------------------------------


(Secs. 7, 8, 65 Stat. 179; 15 U.S.C. 69e, 69f)

[17 FR 1205, Feb. 3, 1952, as amended at 26 FR 10446, Nov. 4, 1961; 32 
FR 6023, Apr. 15, 1967]

                               Regulations

    Source: 17 FR 6075, July 8, 1952, unless otherwise noted.



Sec.  301.1  Terms defined.

    (a) As used in this part, unless the context otherwise specifically 
requires:
    (1) The term act means the Fur Products Labeling Act (approved Aug. 
8, 1951, Pub. L. 110, 82d Cong., 1st Sess.; 15 U.S.C.A. sec. 69; 65 
Stat. 179).
    (2) The terms rule, rules, regulations, and rules and regulations, 
mean the rules and regulations prescribed by the Commission pursuant to 
section 8 (b) of the act.
    (3) The definitions of terms contained in section 2 of the act shall 
be applicable also to such terms when used in rules promulgated under 
the act.
    (4) The terms Fur Products Name Guide and Name Guide mean the 
register of names of hair fleece and fur bearing animals issued by the 
Commission on February 8, 1952, pursuant to the provisions of section 7 
(a) of the act.
    (5) The terms required information and information required mean the 
information required to be disclosed on labels, invoices and in 
advertising under the act and rules and regulations, and such further 
information as may be permitted by the regulations, when and if used.
    (6) The term cat fur means the pelt or skin of any animal of the 
species Felis catus.

[[Page 216]]

    (7) The term dog fur means the pelt or skin of any animal of the 
species Canis familiaris.
    (8) The term dog or cat fur product means any item of merchandise 
which consists, or is composed in whole or in part, of any dog fur, cat 
fur, or both.
    (b) The term wearing apparel as used in the definition of a fur 
product in section 2(d) of the Act means (1) Any articles of clothing or 
covering for any part of the body; and (2) shall include any assembled 
furs, used furs, or waste furs, in attached form, including mats, plates 
or garment shells or furs flat off the board, and furs which have been 
dyed, tip-dyed, bleached or artificially colored, intended for use as or 
in wearing apparel: Provided, however, That the provisions of section 
4(2) of the Act shall not be applicable to those fur products set out in 
paragraph (b)(2) of this section.

[17 FR 6075, July 8, 1952, as amended at 26 FR 3186, Apr. 14, 1961; 61 
FR 67709, Dec. 24, 1996; 65 FR 82270, Dec. 28, 2000]



Sec.  301.2  General requirements.

    (a) Each and every fur product, except those exempted under Sec.  
301.39 of this part, shall be labeled and invoiced in conformity with 
the requirements of the act and rules and regulations.
    (b) Each and every fur shall be invoiced in conformity with the 
requirements of the act and rules and regulations.
    (c) Any advertising of fur products or furs shall be in conformity 
with the requirements of the act and rules and regulations.



Sec.  301.3  English language requirements.

    All information required under the act and rules and regulations to 
appear on labels, invoices, and in advertising, shall be set out in the 
English language. If labels, invoices or advertising matter contain any 
of the required information in a language other than English, all of the 
required information shall appear also in the English language. The 
provisions of this section shall not apply to advertisements in foreign 
language newspapers or periodicals, but such advertising shall in all 
other respects comply with the act and regulations.



Sec.  301.4  Abbreviations or ditto marks prohibited.

    In disclosing required information in labeling and advertising, 
words or terms shall not be abbreviated or designated by the use of 
ditto marks but shall be spelled out fully, and in invoicing the 
required information shall not be abbreviated but shall be spelled out 
fully.



Sec.  301.5  Use of Fur Products Name Guide.

    (a) The Fur Products Name Guide (Sec.  301.0 of this part) is set up 
in four columns under the headings of Name, Order, Family and Genus-
Species. The applicable animal name appearing in the column headed 
``Name'' shall be used in the required information in labeling, 
invoicing and advertising of fur products and furs. The scientific names 
appearing under the columns headed Order, Family, and Genus-Species are 
furnished for animal identification purposes and shall not be used.
    (b) Where the name of the animal appearing in the Name Guide 
consists of two separate words the second word shall precede the first 
in designating the name of the animal in the required information; as 
for example: ``Fox, Black'' shall be disclosed as ``Black Fox.''



Sec.  301.6  Animals not listed in Fur Products Name Guide.

    (a) All furs are subject to the act and regulations regardless of 
whether the name of the animal producing the fur appears in the Fur 
Products Name Guide.
    (b) Where fur is obtained from an animal not listed in the Fur 
Products Name Guide it shall be designated in the required information 
by the true English name of the animal or in the absence of a true 
English name, by the name which properly identifies such animal in the 
United States.



Sec.  301.7  Describing furs by certain breed names prohibited.

    If the fur of an animal is described in any manner by its breed, 
species, strain or coloring, irrespective of former usage, such 
descriptive matter shall not contain the name of another animal either 
in the adjective form or

[[Page 217]]

otherwise nor shall such description (subject to any exception contained 
in this part or animal names appearing in the Fur Products Name Guide) 
contain a name in an adjective form or otherwise which connotes a false 
geographic origin of the animal. For example, such designations as 
``Sable Mink,'' ``Chinchilla Rabbit,'' and ``Aleutian Mink'' shall not 
be used.



Sec.  301.8  Use of terms ``Persian Lamb,'' ``Broadtail Lamb,'' and 
``Persian-broadtail Lamb'' permitted.

    (a) The term Persian Lamb may be used to describe the skin of the 
young lamb of the Karakul breed of sheep or top-cross breed of such 
sheep, having hair formed in knuckled curls.
    (b) The term Broadtail Lamb may be used to describe the skin of the 
prematurely born, stillborn, or very young lamb of the Karakul breed of 
sheep or top-cross breed of such sheep, having flat light-weight fur 
with a moire pattern.
    (c) The term Persian-broadtail Lamb may be used to describe the skin 
of the very young lamb of the Karakul breed of sheep or top-cross breed 
of such sheep, having hair formed in flattened knuckled curls with a 
moire pattern.
    (d) The terms ``Persian Lamb'', ``Broadtail Lamb'', or ``Persian-
broadtail Lamb'' shall not be used to describe: (1) The so-called 
Krimmer, Bessarabian, Rumanian, Shiraz, Salzfelle, Metis, Dubar, Meshed, 
Caracul, Iranian, Iraqi, Chinese, Mongolian, Chekiang, or Indian lamb 
skins, unless such lamb skins conform with the requirements set out in 
paragraph (a), (b), or (c) of this section respectively; or (2) any 
other lamb skins having hair in a wavy or open curl pattern.



Sec.  301.9  Use of terms ``Mouton Lamb'' and ``Shearling Lamb'' permitted.

    (a) The term Mouton Lamb may be used to describe the skin of a lamb 
which has been sheared, the hair straightened, chemically treated, and 
thermally set to produce a moisture repellant finish; as for example:

Dyed Mouton Lamb

    (b) The term Shearling Lamb may be used to describe the skin of a 
lamb which has been sheared and combed.

[17 FR 6075, July 8, 1952, as amended at 26 FR 3186, Apr. 14, 1961]



Sec.  301.10  Use of term ``Broadtail-processed Lamb'' permitted.

    The term Broadtail-processed Lamb may be used to describe the skin 
of a lamb which has been sheared, leaving a moire hair pattern on the 
pelt having the appearance of the true fur pattern of ``Broadtail 
Lamb''; as for example:

Dyed Broadtail-processed Lamb
Fur origin: Argentina



Sec.  301.11  Fictitious or non-existing animal designations prohibited.

    No trade names, coined names, nor other names or words descriptive 
of a fur as being the fur of an animal which is in fact fictitious or 
non-existent shall be used in labeling, invoicing or advertising of a 
fur or fur product.



Sec.  301.12  Country of origin of imported furs.

    (a)(1) In the case of furs imported into the United States from a 
foreign country, the country of origin of such furs shall be set forth 
as a part of the information required by the act in invoicing and 
advertising.
    (2) In the case of fur products imported into the United States from 
a foreign country, or fur products made from furs imported into the 
United States from a foreign country, the country of origin of the furs 
contained in such products shall be set forth as a part of the 
information required by the act in labeling, invoicing and advertising.
    (b) The term country means the political entity known as a nation. 
Colonies, possessions or protectorates outside the boundaries of the 
mother country shall be considered separate countries and the name 
thereof shall be deemed acceptable in designating the ``country of 
origin'' unless the Commission shall otherwise direct.
    (c) The country in which the animal producing the fur was raised, or 
if in a feral state, was taken, shall be considered the ``country of 
origin.''
    (d) When furs are taken within the territorial waters of a country, 
such

[[Page 218]]

country shall be considered the ``country of origin.'' Furs taken 
outside such territorial waters, or on the high seas, shall have as 
their country of origin the country having the nearest mainland.
    (e)(1) The English name of the country of origin shall be used. 
Abbreviations which unmistakably indicate the name of a country, such as 
``Gt. Britain'' for ``Great Britain,'' are acceptable. Abbreviations 
such as ``N.Z.'' for ``New Zealand'' are not acceptable.
    (2) The name of the country of origin, when used as a part of the 
required information in labeling shall be preceded by the term fur 
origin; as for example:

Dyed Muskrat
Fur Origin: Russia

 or

Dyed China Mink
Fur Origin: China

    (3) In addition to the required disclosure of country of origin the 
name of the country may also appear in adjective form in connection with 
the name of the animal; as for example:

Tip-dyed Canadian American Sable
Fur Origin: Canada

 or

Russian Sable
Fur Origin: Russia

    (f) Nothing in this section shall be construed as limiting in any 
way the information required to be disclosed on labels under the 
provisions of any Tariff Act of the United States or regulations 
prescribed by the Secretary of the Treasury.

[17 FR 6075, July 8, 1952, as amended at 26 FR 3186, Apr. 14, 1961; 61 
FR 67709, Dec. 24, 1996]



Sec.  301.13  Fur products having furs with different countries of origin.

    When a fur product is composed of furs with different countries of 
origin the names of such countries shall be set forth in the required 
information in the order of predominance by surface areas of the furs in 
the fur product.



Sec.  301.14  Country of origin of used furs.

    When the country of origin of used furs is unknown, and no 
representations are made directly or by implication with respect 
thereto, this fact shall be set out as a part of the required 
information in lieu of the country of origin as ``Fur origin: Unknown.''



Sec.  301.15  Designation of section producing domestic furs permitted.

    In the case of furs produced in the United States the name of the 
section or area producing the furs used in the fur product may be set 
out in connection with the name of the animal; as for example:

Dyed Fur Seal
Fur origin: Alaska

 or

Dyed Muskrat
Fur origin: Minnesota



Sec.  301.16  Disclosure of origin of certain furs raised or taken in 
United States.

    If the name of any animal set out in the Fur Products Name Guide or 
term permitted by the regulations to be used in connection therewith 
connotes foreign origin and such animal is raised or taken in the United 
States, furs obtained therefrom shall be described in disclosing the 
required information as having the United States as the country of 
origin; as for example:

Dyed Persian Lamb
Fur origin: United States

 or

Mexican Raccoon
Fur origin: United States



Sec.  301.17  Misrepresentation of origin of furs.

    No misleading nor deceptive statements as to the geographical or 
zoological origin of the animal producing a fur shall be used directly 
or indirectly in labeling, invoicing or advertising furs or fur 
products.



Sec.  301.18  Passing off domestic furs as imported furs prohibited.

    No domestic furs nor fur products shall be labeled, invoiced or 
advertised in such a manner as to represent directly or by implication 
that they have been imported.



Sec.  301.19  Pointing, dyeing, bleaching or otherwise artificially coloring.

    (a) Where a fur or fur product is pointed or contains or is composed 
of bleached, dyed or otherwise artificially

[[Page 219]]

colored fur, such facts shall be disclosed as a part of the required 
information in labeling, invoicing and advertising.
    (b) The term pointing means the process of inserting separate hairs 
into furs or fur products for the purpose of adding guard hairs, either 
to repair damaged areas or to simulate other furs.
    (c) The term bleaching means the process for producing a lighter 
shade of a fur, or removing off-color spots and stains by a bleaching 
agent.
    (d) The term dyeing (which includes the processes known in the trade 
of tipping the hair or fur, feathering, and beautifying) means the 
process of applying dyestuffs to the hair or fur, either by immersion in 
a dye bath or by application of the dye by brush, feather, spray, or 
otherwise, for the purpose of changing the color of the fur or hair, or 
to accentuate its natural color. When dyestuff is applied by immersion 
in a dye bath or by application of the dye by brush, feather, or spray, 
it may respectively be described as ``vat dyed'', ``brush dyed'', 
``feather dyed'', or ``spray dyed'', as the case may be. When dyestuff 
is applied only to the ends of the hair or fur, by feather or otherwise, 
it may also be described as ``tip-dyed''. The application of dyestuff to 
the leather or the skin (known in the trade as ``tipping'', as 
distinguished from tip-dyeing the hair or fur as above described) and 
which does not affect a change of, nor accentuate the natural color of 
the hair or fur, shall not be considered as ``dyeing''. When fluorescent 
dye is applied to a fur or fur product it may be described as 
``brightener added''.
    (e) The term artificial coloring means any change or improvement in 
color of a fur or fur product in any manner other than by pointing, 
bleaching, dyeing, or tip-dyeing, and shall be described in labeling, 
invoicing and advertising as ``color altered'' or ``color added''.
    (f) The term blended shall not be used as a part of the required 
information to describe the pointing, bleaching, dyeing, tip-dyeing, or 
otherwise artificially coloring of furs.
    (g) Where a fur or fur product is not pointed, bleached, dyed, tip-
dyed, or otherwise artificially colored it shall be described as 
``natural''.
    (h) Where any fur or fur product is dressed, processed or treated 
with a solution or compound containing any metal and such compound or 
solution effects any change or improvement in the color of the hair, 
fleece or fur fiber, such fur or fur product shall be described in 
labeling, invoicing and advertising as ``color altered'' or ``color 
added''.
    (i)(1) Any person dressing, processing or treating a fur pelt in 
such a manner that it is required under paragraph (e) or (h) of this 
section to be described as ``color altered'' or ``color added'' shall 
place a black stripe at least one half inch (1.27 cm) in width across 
the leather side of the skin immediately above the rump or place a stamp 
with a solid black center in the form of either a two inch (5.08 cm) 
square or a circle at least two inches (5.08 cm) in diameter on the 
leather side of the pelt and shall use black ink for all other stamps or 
markings on the leather side of the pelt.
    (2) Any person dressing, processing or treating a fur pelt which 
after processing is considered natural under paragraph (g) of this 
section shall place a white stripe at least one half inch (1.27 cm) in 
width across the leather side of the skin immediately above the rump or 
place a stamp with a solid white center in the form of either a two inch 
(5.08 cm) square or a circle at least two inches (5.08 cm) in diameter 
on the leather side of the pelt and shall use white ink for all other 
stamps or markings on the leather side of the pelt.
    (3) Any person dressing, processing or treating a fur pelt in such a 
manner that it is considered dyed under paragraph (d) of this section 
shall place a yellow stripe at least one half inch (1.27 cm) in width 
across the leather side immediately above the rump or place a stamp with 
a solid yellow center in the form of either a two inch (5.08 cm) square 
or a circle at least two inches (5.08 cm) in diameter on the leather 
side of the pelt and shall use yellow ink for all other stamps or 
markings on the leather side of the pelt.
    (4) In lieu of the marking or stamping otherwise required by 
paragraphs

[[Page 220]]

(i) (1), (2), and (3) of this section, any person dressing, processing 
or treating a fur pelt so as to be subject to the stamping or marking 
requirements of this paragraph may stamp the leather side of the pelt 
with the appropriate truthful designation ``dyed'', ``color altered'', 
``color added'', or ``natural'', as the case may be, in such manner that 
the stamp will not be obliterated or mutilated by further processing and 
will remain clearly legible until the finished fur product reaches the 
ultimate consumer.
    (5) Where, after assembling, fur garment shells, mats, plates or 
other assembled furs are processed or treated in such a manner as to 
fall within the stamping or marking provisions of this paragraph, such 
assembled furs, in lieu of the stamping or marking of each individual 
pelt or piece, may be appropriately stamped on the leather side as 
provided in this paragraph in such a manner that the stamp will remain 
on the finished fur product and clearly legible until it reaches the 
ultimate consumer and will not be mutilated or obliterated by further 
processing.
    (j) Any person who shall process a fur pelt in such a manner that 
after such processing it is no longer considered as natural shall 
clearly, conspicuously and legibly stamp on the leather side of the pelt 
and on required invoices relating thereto a lot number or other 
identifying number which relates to such records of the processor as 
will show the source and disposition of the pelts and the details of the 
processing performed. Such person shall also stamp his name or 
registered identification number on the leather side of the pelt.
    (k) Any person who possesses fur pelts of a type which are always 
considered as dyed under paragraph (d) of this section after processing 
or any person who processes fur pelts which are always natural at the 
time of sale to the ultimate consumer, which pelts for a valid reason 
cannot be marked or stamped as provided in this section, may file an 
affidavit with the Federal Trade Commission's Bureau of Consumer 
Protection setting forth such facts as will show that the pelts are 
always dyed or natural as the case may be and that the stamping of such 
pelts cannot be reasonably accomplished. If the Bureau of Consumer 
Protection is satisfied that the public interest will be protected by 
the filing of the affidavit, it may accept such affidavit and advise the 
affiant that marking of the fur pelts themselves as provided in this 
section will be unnecessary until further notice. Any person filing such 
an affidavit shall promptly notify the Commission of any change in 
circumstances with respect to its operations.
    (l) Any person subject to this section who incorrectly marks or 
fails to mark fur pelts as provided in paragraphs (i) and (j) of this 
section shall be deemed to have misbranded such products under section 
4(l) of the Act. Any person subject to this section who furnishes a 
false or misleading affidavit under paragraph (k) of this section or 
fails to give the notice required by paragraph (k) of this section shall 
be deemed to have neglected and refused to maintain the records required 
by section 8(d) of the Act.
    (1) In connection with paragraph (h) of this section, the following 
method may be used for detection of parts per million of iron and copper 
in hairs from fur pelts including hairs from mink pelts. Procedure for 
detection of parts per million of iron and copper in hairs from fur 
pelts including mink hairs.
    (2) A recommended method for preparation of samples would be: 
Carefully pluck hair samples from 10 to 15 different representative 
sites on the pelt or garment. This can best be accomplished by using a 
long nose stainless steel pliers with a tip diameter of \1/16\ inch 
(1.59 mm). The pliers should be inserted at the same angle as the guard 
hairs with the tip opened to \1/4\ inch (6.35 mm). After contact with 
the hide, the tip should be raised about \1/4\ inch (6.35 mm), closed 
tightly and pulled quickly and firmly to remove the hair.
    (3) Place an accurately weighed sample of approximately .1000 grams 
of mink hair into a beaker with 20 ml. concentrated nitric acid. 
Evaporate just to dryness on a hot plate.
    (4) If there is any organic matter still present, add 10 ml. of 
concentrated nitric acid (see paragraph 7) and again evaporate just to 
dryness on a hot plate. This step should be repeated until the nitric 
acid solution becomes

[[Page 221]]

clear to light green. Add 10 ml. of 1% hydrochloric acid to the dried 
residue in the beaker. Warm on a hot plate to insure complete solution 
of the residue.
    (5) A recommended analytical procedure would be atomic absorption 
spectrophotometry. In testing for iron, the atomic absorption instrument 
must have the capability of a 2 angstrom band pass at the 2483 A line. 
When analyzing for iron the air-acetylene flame should be as lean as 
possible.
    (6) A reagent blank should be carried through the entire procedure 
as outlined above and the final results corrected for the amounts of 
iron and copper found in the reagent blank.
    (7) If facilities are available for handling perchloric acid, a 
preferred alternate to the additional nitric acid treatment would be to 
add 2 ml. of perchloric acid and 8 ml. of nitric acid, cover the beaker 
with a watch glass and allow the solutions to become clear to light 
green before removal of the watch glass and evaporation just to dryness.

[17 FR 6075, July 8, 1952, as amended at 26 FR 3186, Apr. 14, 1961; 34 
FR 381, Jan. 10, 1969; 36 FR 5689, Mar. 26, 1971; 41 FR 2636, Jan. 19, 
1976; 53 FR 31314, Aug. 18, 1988; 61 FR 67709, Dec. 24, 1996]



Sec.  301.20  Fur products composed of pieces.

    (a) Where fur products, or fur mats and plates, are composed in 
whole or in substantial part of paws, tails, bellies, sides, flanks, 
gills, ears, throats, heads, scrap pieces, or waste fur, such fact shall 
be disclosed as a part of the required information in labeling, 
invoicing and advertising. Where a fur product is made of the backs of 
skins such fact may be set out in labels, invoices and advertising.
    (b) Where fur products, or fur mats and plates, are composed wholly 
or substantially of two or more of the parts set out in paragraph (a) of 
this section or one or more of such parts and other fur, disclosure in 
respect thereto shall be made by naming such parts or other fur in order 
of predominance by surface area.
    (c) The terms substantial part and substantially mean ten per centum 
(10 percent) or more in surface area.
    (d) The term assembled shall not be used in lieu of the terms set 
forth in paragraph (a) of this section to describe fur products or fur 
mats and plates composed of such parts.



Sec.  301.21  Disclosure of used furs.

    (a) When fur in any form has been worn or used by an ultimate 
consumer it shall be designated ``used fur'' as a part of the required 
information in invoicing and advertising.
    (b) When fur products or fur mats and plates are composed in whole 
or in part of used fur, such fact shall be disclosed as a part of the 
required information in labeling, invoicing and advertising; as for 
example:

Leopard
Used Fur

 or

Dyed Muskrat
Contains Used Fur



Sec.  301.22  Disclosure of damaged furs.

    (a) The term damaged fur, as used in this part, means a fur, which, 
because of a known or patent defect resulting from natural causes or 
from processing, is of such a nature that its use in a fur product would 
decrease the normal life and durability of such product.
    (b) When damaged furs are used in a fur product, full disclosure of 
such fact shall be made as a part of the required information in 
labeling, invoicing, or advertising such product; as for example:

Mink
Fur origin: Canada
Contains Damaged Fur



Sec.  301.23  Second-hand fur products.

    When a fur product has been used or worn by an ultimate consumer and 
is subsequently marketed in its original, reconditioned, or rebuilt form 
with or without the addition of any furs or used furs, the requirements 
of the act and regulations in respect to labeling, invoicing and 
advertising of such product shall be applicable thereto, subject, 
however, to the provisions of Sec.  301.14 of this part as to country of 
origin requirement, and in addition, as a part of the required 
information such product shall be designated ``Second-hand'',

[[Page 222]]

``Reconditioned-Second-hand'', or ``Rebuilt-Second-hand'', as the case 
may be.



Sec.  301.24  Repairing, restyling and remodeling fur products for consumer.

    When fur products owned by and to be returned to the ultimate-
consumer are repaired, restyled or remodeled and used fur or fur is 
added thereto, labeling of the fur product shall not be required. 
However, the person adding such used fur or fur to the fur product, or 
who is responsible therefor, shall give to the owner an invoice 
disclosing the information required under the act and regulations 
respecting the used fur or fur added to the fur product, subject, 
however, to the provisions of Sec.  301.14 of this part as to country of 
origin requirements.



Sec.  301.25  Name required to appear on labels and invoices.

    The name required by the act to be used on labels and invoices shall 
be the full name under which the person is doing business, and no trade-
mark, trade name nor other name which does not constitute such full name 
shall be used in lieu thereof.



Sec.  301.26  Registered identification numbers.

    (a) Registered numbers for use as the required identification in 
lieu of the name on fur product labels as provided in section 4(2)(E) of 
the act will be issued by the Commission to qualified persons residing 
in the United States upon receipt of an application duly executed in the 
form set out in paragraph (d) of this section.
    (b)(1) Registered identification numbers shall be used only by the 
person or concern to whom they are issued, and such numbers are not 
transferable or assignable.
    (2) Registered identification numbers shall be subject to 
cancellation if the Federal Trade Commission fails to receive prompt 
notification of any change in name, business address, or legal business 
status of a person or firm to whom a registered identification number 
has been assigned, by application duly executed in the form set out in 
paragraph (d) of this section, reflecting the current name, business 
address, and legal business status of the person or firm.
    (3) Registered identification numbers shall be subject to 
cancellation whenever any such number was procured or has been used 
improperly or contrary to the requirements of the act and regulations, 
or when otherwise deemed necessary in the public interest.
    (c) Registered identification numbers assigned under this rule may 
be used on labels required in labeling products subject to the 
provisions of the Wool Products Labeling Act and Textile Fiber Products 
Identification Act, and numbers previously assigned or to be assigned by 
the Commission under such Acts may be used as and for the required name 
in labeling under this Act. When so used by the person or firm to whom 
assigned, the use of the numbers shall be construed as identifying and 
binding the applicant as fully and in all respects as though assigned 
under the specific Act for which it is used.
    (d) The form to apply for a registered identification number or to 
update information pertaining to an existing number is found in Sec.  
303.20(d) of this chapter. The form is available upon request from the 
Textile Section, Enforcement Division, Federal Trade Commission, 600 
Pennsylvania Avenue, NW, Washington, DC 20580, or on the Internet at 
http://www.ftc.gov).

[17 FR 6075, July 8, 1952, as amended at 26 FR 3187, Apr. 14, 1961; 48 
FR 12516, Mar. 25, 1983; 63 FR 7517, Feb. 13, 1998; 63 FR 71583, Dec. 
28, 1998]



Sec.  301.27  Label and method of affixing.

    At all times during the marketing of a fur product the required 
label shall have a minimum dimension of one and three-fourths (1\3/4\) 
inches by two and three-fourths (2\3/4\) inches (4.5 cm x 7 cm). Such 
label shall be of a material of sufficient durability and shall be 
conspicuously affixed to the product in a secure manner and with 
sufficient permanency to remain thereon throughout the sale, resale, 
distribution and handling incident thereto, and shall remain on or be 
firmly affixed to the respective product when sold and delivered to the 
purchaser and purchaser-consumer thereof.

[61 FR 67710, Dec. 24, 1996]

[[Page 223]]



Sec.  301.28  Labels to be avoided.

    Labels which are insecurely or inconspicuously attached, or which in 
the course of offering the fur product for sale, selling, transporting, 
marketing, or handling incident thereto, are likely to become detached, 
indistinct, obliterated, illegible, mutilated, inaccessible or 
inconspicuous shall not be used.



Sec.  301.29  Requirements in respect to disclosure on label.

    (a) The required information shall be set out on the label in a 
legible manner and in not smaller than pica or twelve (12) point type, 
and all parts of the required information shall be set out in letters of 
equal size and conspicuousness. All of the required information with 
respect to the fur product shall be set out on one side of the label and 
no other information shall appear on such side except the lot or style 
designation and size. The lot or style designation may include non-
deceptive terms indicating the type of garment, color of fur, and brand 
name for fur. The other side of the label may be used to set out any 
nonrequired information which is true and non-deceptive and which is not 
prohibited by the Act and regulations, but in all cases the animal name 
used shall be that set out in the Name Guide.
    (b) The required information may be set out in hand printing 
provided it conforms to the requirements of paragraph (a) of this 
section, and is set out in indelible ink in a clear, distinct, legible 
and conspicuous manner. Handwriting shall not be used in setting out any 
of the required information on the label.

[17 FR 6075, July 8, 1952, as amended at 26 FR 3187, Apr. 14, 1961]



Sec.  301.30  Arrangement of required information on label.

    (a) The applicable parts of the information required with respect to 
the fur to appear on labels affixed to fur products shall be set out in 
the following sequence:
    (1) That the fur product contains or is composed of natural, 
pointed, bleached, dyed, tip-dyed or otherwise artificially colored fur, 
when such is the fact;
    (2) That the fur product contains fur which has been sheared, 
plucked, or letout, when such is the fact;
    (3) That the fur contained in the fur product originated in a 
particular country (when so used the name of the country should be 
stated in the adjective form), when such is the fact;
    (4) The name or names (as set forth in the Fur Products Name Guide) 
of the animal or animals that produced the fur;
    (5) That the fur product is composed in whole of backs or in whole 
or in substantial part of paws, tails, bellies, sides flanks, gills, 
ears, throats, heads, scrap pieces, or waste fur, when such is the fact;
    (6) The name of the country of origin of any imported furs used in 
the fur product;
    (7) Any other information required or permitted by the Act and 
regulations with respect to the fur.

    Note: The information set out in paragraphs (a) (2) and (3) of this 
section and the term backs set out in paragraph (a)(5) of this section 
are not mandatory, but when and if used, shall be set out in the 
sequence noted.

    (b) That part of the required information with respect to the name 
or registered identification number of the manufacturer or dealer may 
precede or follow the required information set out in paragraph (a) of 
this section.

[17 FR 6075, July 8, 1952, as amended at 26 FR 3187, Apr. 14, 1961]



Sec.  301.31  Labeling of fur products consisting of two or more units.

    (a) The label shall be attached to and appear upon each garment or 
separate article of wearing apparel subject to the act irrespective of 
whether two or more garments or articles may be sold or marketed 
together or in combination with each other.
    (b) In the case of fur products manufactured for use in pairs or 
groups, only one label will be required if all units in the pair or 
group are of the same fur and have the same country of origin, and are 
firmly attached to each other when marketed and delivered in the 
channels of trade and to the purchaser-consumer and the information set 
out on the label is clearly applicable to

[[Page 224]]

each unit in the pair or group and supplies the information required 
under the act and rules and regulations.



Sec.  301.32  Fur product containing material other than fur.

    (a) Where a fur product contains a material other than fur the 
content of which is required to be disclosed on labels under other 
statutes administered by the Commission, such information may be set out 
on the same side of the label and in immediate conjunction with the 
information required under this Act; as for example:

100% Wool
Interlining--100% Recycled Wool
Trim--Dyed Muskrat
Fur Origin: Canada

 or

Body: 100% Cotton
Lining: 100% Nylon
Collar: Dyed Mouton Lamb
Fur Origin: Argentina

    (b) Information which may be desirable or necessary to fully inform 
the purchaser of other material content of a fur product may be set out 
on the same side of the label as used for disclosing the information 
required under the Act and rules and regulations; as for example:

Body--Leather
Trim--Dyed Mink

[26 FR 3187, Apr. 14, 1961, as amended at 45 FR 44263, July 1, 1980]



Sec.  301.33  Labeling of samples.

    Where samples of furs or fur products subject to the act are used to 
promote or effect sales of fur products, said samples, as well as the 
fur products purchased therefrom, shall be labeled to show the 
information required under the act and regulations.



Sec.  301.34  Misbranded or falsely invoiced fur products.

    (a) If a person subject to section 3 of the Act with respect to a 
fur product finds that a fur product is misbranded he shall correct the 
label or replace same with a substitute containing the required 
information.
    (b) If a person subject to section 3 of the Act with respect to a 
fur or fur product finds that the invoice issued to him is false or 
deceptive, he shall, in connection with any invoice issued by him in 
relation to such fur or fur product correctly set forth all of the 
information required by the Act and regulations in relation to such fur 
or fur product.

[26 FR 3187, Apr. 14, 1961]



Sec.  301.35  Substitution of labels.

    (a) Persons authorized under the provisions of section 3(e) of the 
act to substitute labels affixed to fur products may do so, provided the 
substitute label is complete and carries all the information required 
under the act and rules and regulations in the same form and manner as 
required in respect to the original label. The substitute label need 
not, however, show the name or registered number appearing on the 
original label if the name or registered number of the person who 
affixes the substitute appears thereon.
    (b) The original label may be used as a substitute label provided 
the name or registered number of the person making the substitution, 
together with the item number or mark assigned by such person to said 
fur product for record purposes is inserted thereon without interfering 
with or obscuring in any manner other required information. In 
connection with such substitution the name or registered number as well 
as any record numbers appearing on the original label may be removed.
    (c) Persons substituting labels under the provision of this section 
shall maintain the records required under Sec.  301.41 of this part.



Sec.  301.36  Sectional fur products.

    (a) Where a fur product is composed of two or more sections 
containing different animal furs the required information with respect 
to each section shall be separately set forth in labeling, invoicing or 
advertising; as for example:

Dyed Rabbit
Fur origin: France
Trimming: Dyed Mouton-processed Lamb
Fur origin: Argentina

 or

Body: Dyed Kolinsky
Fur origin: Russia
Tail: Dyed Mink
Fur origin: Canada


[[Page 225]]


    (b) The provisions of this section shall not be interpreted so as to 
require the disclosure of very small amounts of different animal furs 
added to complete a fur product or skin such as the ears, snoot, or 
under part of the jaw.



Sec.  301.37  Manner of invoicing furs and fur products.

    (a) In the invoicing of furs and fur products, all of the required 
information shall be set out in a clear, legible, distinct and 
conspicuous manner. The invoice shall be issued at the time of the sale 
or other transaction involving furs or fur products, but the required 
information need not be repeated in subsequent periodic statements of 
account respecting the same furs or fur products.
    (b) Non-required information or representations appearing in the 
invoicing of furs and fur products shall in no way be false or deceptive 
nor include any names, terms or representations prohibited by the act 
and regulations. Nor shall such information or representations be set 
forth or used in such manner as to interfere with the required 
information.



Sec.  301.38  Advertising of furs and fur products.

    (a)(1) In advertising furs or fur products, all parts of the 
required information shall be stated in close proximity with each other 
and, if printed, in legible and conspicuous type of equal size.
    (2) Non-required information or representations appearing in the 
advertising of furs and fur products shall in no way be false or 
deceptive nor include any names, terms or representations prohibited by 
the act and regulations. Nor shall such information or representations 
be set forth or used in such manner as to interfere with the required 
information.
    (b)(1) In general advertising of a group of fur products composed in 
whole or in part of imported furs having various countries of origin, 
the disclosure of such countries of origin may, by reference, be made 
through the use of the following statement in the advertisement in a 
clear and conspicuous manner:

Fur products labeled to show country of origin of imported furs

    (2) The provisions of this paragraph shall not be applicable in the 
case of catalogue, mail order, or other types of advertising which 
solicit the purchase of fur products in such a manner that the purchaser 
or prospective purchaser would not have the opportunity of viewing the 
product and attached label prior to delivery thereof.
    (c) In advertising of an institutional type referring only to the 
general nature or kind of business conducted or to the general 
classification of the types or kinds of furs or fur products 
manufactured or handled, and which advertising is not intended to aid, 
promote, or assist directly or indirectly in the sale or offering for 
sale of any specific fur products or furs, the required information need 
not be set forth: Provided, however, That if reference is made in the 
advertisement to a color of the fur which was caused by dyeing, 
bleaching or other artificial coloring, such facts shall be disclosed in 
the advertising, and provided further, that when animal names are used 
in such advertising, such names shall be those set forth in the Fur 
Products Name Guide. For example, the kind of advertising contemplated 
by this paragraph is as follows:

X Fur Company
Famous for its Black Dyed Persian Lamb Since 1900

 or

X Company
Manufacturers of Fine Muskrat Coats, Capes and Stoles



Sec.  301.39  Exempted fur products.

    (a) If the cost of any fur trim or other manufactured fur or furs 
contained in a fur product, exclusive of any costs incident to its 
incorporation therein, does not exceed one hundred fifty dollars ($150) 
to the manufacturer of the finished fur product, or if a manufacturer's 
selling price of a fur product does not exceed one hundred fifty dollars 
($150), and the provisions of paragraphs (b) and (c) of this section are 
met, the fur product shall be exempted from the requirements of the Act 
and regulations in this part; provided, however, that if the fur product 
is made of or contains any used fur, or if the fur product itself is or 
purports to be the whole skin of an animal with

[[Page 226]]

the head, ears, paws and tail, such as a choker or scarf, the fur 
product is to be labeled, invoiced and advertised in accordance with the 
requirements of the Act and regulations in this part, regardless of the 
cost of the fur used in the fur product or the manufacturer's selling 
price. The exemption provided for herein shall not be applicable:
    (1) To any dog or cat fur product;
    (2) If any false, deceptive, or misleading representations as to the 
fur contained in the fur product are made; or
    (3) If any representations as to the fur are made in labeling, 
invoicing, or advertising without disclosing:
    (i) In the case of labels, the information required to be disclosed 
under section 4(2)(A), (C), and (D) of the Act;
    (ii) In the case of advertising, the information required to be 
disclosed under section 5(a)(1), (3), and (4) of the Act; and
    (iii) In the case of invoicing, the information required to be 
disclosed under section 5(b)(1)(A), (C), and (D) of the Act.
    (b) Where a fur product is exempt under this section from the 
requirements of the act and regulations, the manufacturer thereof shall 
maintain, in addition to the other records required under the act and 
regulations, adequate records showing the cost of the fur used in such 
fur product, or copies of invoices showing the manufacturer's selling 
price of the fur product, provided such price is used as the basis for 
exemption. Such records shall be preserved for at least three years.
    (c) If a fur product is exempt under this section and the 
manufacturer's selling price exceeds one hundred fifty dollars ($150), 
the manufacturer's or wholesaler's invoice shall carry information 
indicating such fur product is exempt from the provisions of the Act and 
regulations in this part; as for example: ``FPL EXEMPT.''

[17 FR 6075, July 8, 1952, as amended at 26 FR 3187, Apr. 14, 1961; 26 
FR 3771, May 2, 1961; 34 FR 381, Jan. 10, 1969; 63 FR 7517, Feb. 13, 
1998; 65 FR 82270, Dec. 28, 2000]



Sec.  301.40  Item number or mark to be assigned to each fur product.

    (a) For the purpose of identification, each fur product shall be 
assigned a separate item number or mark by the manufacturer thereof: 
Provided, however, That where all of the furs used in a group of fur 
products are obtained through the same purchase and from the same source 
and all of the required information with respect to such furs is 
identical, then a single item number or mark may be assigned to identify 
all of the fur products in such group. Each number or mark so assigned 
shall appear on the required label and invoice pertaining to such 
product and used for the identification thereof in the records required 
by Sec.  301.41 of this part.
    (b) Any subsequent dealer in fur products may assign to each fur 
product handled a different item number or mark to be used on the 
required label and invoice pertaining to such product, in lieu of that 
of the manufacturer or other supplier, and for the identification of 
such fur product in the records required by Sec.  301.41 of this part.



Sec.  301.41  Maintenance of records.

    (a) Pursuant to section 3(e) and section 8(d)(1), of the Act, each 
manufacturer or dealer in fur products or furs (including dressers, 
dyers, bleachers and processors), irrespective of whether any guaranty 
has been given or received, shall maintain records showing all of the 
required information relative to such fur products or furs in such 
manner as will readily identify each fur or fur product manufactured or 
handled. Such records shall show:
    (1) That the fur product contains or is composed of natural, 
pointed, bleached, dyed, tip-dyed or otherwise artificially colored fur, 
when such is the fact;
    (2) That the fur product contains used fur, when such is the fact;
    (3) The name or names (as set forth in the Fur Products Name Guide) 
of the animal or animals that produced the fur;
    (4) That the fur product is composed in whole or in substantial part 
of paws, tails, bellies, sides, flanks, gills, ears, throats, heads, 
scrap pieces, or waste fur, when such is the fact;
    (5) The name of the country of origin of any imported furs used in 
the fur products;

[[Page 227]]

    (6) The name, or other identification issued and registered by the 
Commission, of one or more of the persons who manufacture, import, sell, 
advertise, offer, transport or distribute the fur product in commerce.
    (7) The item number assigned, or reassigned, to each fur or fur 
product as set out in Sec.  301.40
    (b) The purpose of the records is to permit a determination that the 
requirements of the Act and Regulations have been met and to establish a 
traceable line of continuity from raw material through processing to 
finished product. The records shall be preserved for at least three 
years.

[53 FR 31315, Aug. 18, 1988]



Sec.  301.42  Deception as to nature of business.

    When necessary to avoid deception, the name of any person other than 
the manufacturer of the fur product appearing on the label or invoice 
shall be accompanied by appropriate words showing that the fur product 
was not manufactured by such person; as for example:

Distributed by ------------

 or

------------ Wholesalers



Sec.  301.43  Use of deceptive trade or corporate names, trademarks or 
graphic representations prohibited.

    No person shall use in labeling, invoicing or advertising any fur or 
fur product a trade name, corporate name, trademark or other trade 
designation or graphic representation which misrepresents directly or by 
implication to purchasers, prospective purchasers or the consuming 
public:
    (a) The character of the product including method of construction;
    (b) The name of the animal producing the fur;
    (c) The method or manner of distribution; or
    (d) The geographical or zoological origin of the fur.

[61 FR 67710, Dec. 24, 1996]



Sec.  301.44  Misrepresentation of prices.

    (a) No person shall, with respect to a fur or fur product, advertise 
such fur or fur product at alleged wholesale prices or at alleged 
manufacturers cost or less, unless such representations are true in 
fact; nor shall any person advertise a fur or fur product at prices 
purported to be reduced from what are in fact fictitious prices, nor at 
a purported reduction in price when such purported reduction is in fact 
fictitious.
    (b) No person shall, with respect to a fur or fur product, advertise 
such fur or fur product with comparative prices and percentage savings 
claims except on the basis of current market values or unless the time 
of such compared price is given.
    (c) No person shall, with respect to a fur or fur product, advertise 
such fur or fur product as being ``made to sell for'', being ``worth'' 
or ``valued at'' a certain price, or by similar statements, unless such 
claim or representation is true in fact.
    (d) No person shall, with respect to a fur or fur product, advertise 
such fur or fur product as being of a certain value or quality unless 
such claims or representations are true in fact.
    (e) Persons making pricing claims or representations of the types 
described in paragraphs (a), (b), (c) and (d) of this section shall 
maintain full and adequate records disclosing the facts upon which such 
claims or representations are based.
    (f) No person shall, with respect to a fur or fur product, advertise 
such fur or fur product by the use of an illustration which shows such 
fur or fur product to be a higher priced product than the one so 
advertised.
    (g) No person shall, with respect to a fur or fur product, advertise 
such fur or fur product as being ``bankrupt stock'', ``samples'', ``show 
room models'', ``Hollywood Models'', ``Paris Models'', ``French 
Models'', ``Parisian Creations'', ``Furs Worn by Society Women'', 
``Clearance Stock'', ``Auction Stock'', ``Stock of a business in a state 
of liquidation'', or similar statements, unless such representations or 
claims are true in fact.



Sec.  301.45  Representations as to construction of fur products.

    (a) No misleading nor deceptive statements as to the construction of 
fur products shall be used directly or

[[Page 228]]

indirectly in labeling, invoicing or advertising such products. (For 
example, a fur product made by the skin-on-skin method should not be 
represented as having been made by the letout method.)
    (b) Where a fur product is made by the method known in the trade as 
letting-out, or is made of fur which has been sheared or plucked, such 
facts may be set out in labels, invoices and advertising.



Sec.  301.46  Reference to guaranty by Government prohibited.

    No representation nor suggestion that a fur or fur product is 
guaranteed under the act by the Government, or any branch thereof, shall 
be made in the labeling, invoicing or advertising in connection 
therewith.



Sec.  301.47  Form of separate guaranty.

    The following is a suggested form of separate guaranty under section 
10 of the Act which may be used by a guarantor residing in the United 
States, on and as part of an invoice in which the merchandise covered is 
listed and specified and which shows the date of such document, the date 
of shipment of the merchandise and the signature and address of the 
guarantor:

    We guarantee that the fur products or furs specified herein are not 
misbranded nor falsely nor deceptively advertised or invoiced under the 
provisions of the Fur Products Labeling Act and rules and regulations 
thereunder.



Sec.  301.48  Continuing guaranty filed with Federal Trade Commission.

    (a)(1) Under section 10 of the Act any person residing in the United 
States and handling fur or fur products may file a continuing guaranty 
with the Federal Trade Commission. When filed with the Commission a 
continuing guaranty shall be fully executed in duplicate. Forms for use 
in preparing continuing guaranties shall be supplied by the Commission 
upon request.
    (2) Continuing guaranties filed with the Commission shall continue 
in effect until revoked. The guarantor shall promptly report any change 
in business status to the Commission.
    (3) The prescribed form for a continuing guaranty is found in Sec.  
303.38(b) of this chapter. The form is available upon request from the 
Textile Section, Enforcement Division, Federal Trade Commission, 600 
Pennsylvania Avenue, NW, Washington, DC 20580.
    (b) Any person who has a continuing guaranty on file with the 
Commission may, during the effective date of the guaranty, give notice 
of such fact by setting forth on the invoice or other paper covering the 
marketing or handling of the product guaranteed the following: 
``Continuing guaranty under the Fur Products Labeling Act filed with the 
Federal Trade Commission.''
    (c) Any person who falsely represents in writing that he has a 
continuing guaranty on file with the Federal Trade Commission when such 
is not a fact shall be deemed to have furnished a false guaranty under 
section 10(b) of the Act.

[26 FR 3188, Apr. 14, 1961, as amended at 48 FR 12517, Mar. 25, 1983; 63 
FR 7517, Feb. 13, 1998; 63 FR 71583, Dec. 28, 1998]



Sec.  301.48a  Guaranties not received in good faith.

    A guaranty shall not be deemed to have been received in good faith 
within the meaning of section 10(a) of the Act:
    (a) Unless the recipient of such guaranty shall have examined the 
required label, required invoice and advertisement relating to the fur 
product or fur so guaranteed;
    (b) If the recipient of the guaranty has knowledge that the fur or 
fur product guaranteed is misbranded, falsely invoiced or falsely 
advertised.

[26 FR 3188, Apr. 14, 1961]



Sec.  301.49  Deception in general.

    No furs nor fur products shall be labeled, invoiced, or advertised 
in any manner which is false, misleading or deceptive in any respect.



PART 303_RULES AND REGULATIONS UNDER THE TEXTILE FIBER PRODUCTS 
IDENTIFICATION ACT--Table of Contents




Sec.
303.1 Terms defined.
303.2 General requirements.
303.3 Fibers present in amounts of less than 5 percent.
303.4 English language requirement.

[[Page 229]]

303.5 Abbreviations, ditto marks, and asterisks prohibited.
303.6 Generic names of fibers to be used.
303.7 Generic names and definitions for manufactured fibers.
303.8 Procedure for establishing generic names for manufactured fibers.
303.9 Use of fur-bearing animal names and symbols prohibited.
303.10 Fiber content of special types of products.
303.11 Floor coverings containing backings, fillings, and paddings.
303.12 Trimmings of household textile articles.
303.13 Sale of remnants and products made of remnants.
303.14 Products containing unknown fibers.
303.15 Required label and method of affixing.
303.16 Arrangement and disclosure of information on labels.
303.17 Use of fiber trademarks and generic names on labels.
303.18 Terms implying fibers not present.
303.19 Name or other identification required to appear on labels.
303.20 Registered identification numbers.
303.21 Marking of samples, swatches, or specimens and products sold 
          therefrom.
303.22 Products containing linings, interlinings, fillings, and 
          paddings.
303.23 Textile fiber products containing superimposed or added fibers.
303.24 Pile fabrics and products composed thereof.
303.25 Sectional disclosure of content.
303.26 Ornamentation.
303.27 Use of the term ``All'' or ``100%.''
303.28 Products contained in packages.
303.29 Labeling of pairs or products containing two or more units.
303.30 Textile fiber products in form for consumer.
303.31 Invoice in lieu of label.
303.32 Products containing reused stuffing.
303.33 Country where textile fiber products are processed or 
          manufactured.
303.34 Country of origin in mail order advertising.
303.35 Use of terms ``virgin'' or ``new.''
303.36 Form of separate guaranty.
303.37 Form of continuing guaranty from seller to buyer.
303.38 Continuing guaranty filed with Federal Trade Commission.
303.39 Maintenance of records.
303.40 Use of terms in written advertisements that imply presence of a 
          fiber.
303.41 Use of fiber trademarks and generic names in advertising.
303.42 Arrangement of information in advertising textile fiber products.
303.43 Fiber content tolerances.
303.44 Products not intended for uses subject to the act.
303.45 Exclusions from the act.

    Authority: 15 U.S.C. 70 et seq.

    Source: 24 FR 4480, June 2, 1959, unless otherwise noted.



Sec.  303.1  Terms defined.

    As used in this part, unless the context otherwise specifically 
requires:
    (a) The term Act means the Textile Fiber Products Identification Act 
(approved September 2, 1958, 85th Congress, 2d Sess.; 15 U.S.C. 70, 72 
Stat. 1717).
    (b) The terms rule, rules, regulations, and rules and regulations 
mean the rules and regulations prescribed by the Commission pursuant to 
section 7(c) of the Act.
    (c) The definition of terms contained in section 2 of the Act shall 
be applicable also to such terms when used in rules promulgated under 
the Act.
    (d) The term United States means the several States, the District of 
Columbia, and the Territories and possessions of the United States.
    (e) The terms required information and information required mean 
such information as is required to be disclosed on labels or invoices 
and in advertising under the Act and regulations.
    (f) The terms label, labels, labeled, and labeling mean the stamp, 
tag, label, or other means of identification, or authorized substitute 
therefor, required to be on or affixed to textile fiber products by the 
Act and regulations and on which the information required is to appear.
    (g) The terms marketing or handling and marketed or handled, when 
applied to textile fiber products, mean any one or all of the 
transactions set forth in section 3 of the Act.
    (h) The terms invoice and invoice or other paper mean an account, 
order, memorandum, list, or catalog, which is issued to a purchaser, 
consignee, bailee, correspondent, agent, or any other person, in writing 
or in some other form capable of being read and preserved in a tangible 
form, in connection with the marketing or handling of any textile fiber 
product transported or delivered to such person.
    (i) The term outer coverings of furniture, mattresses, and box 
springs means those coverings as are permanently incorporated in such 
articles.

[[Page 230]]

    (j) The term wearing apparel means any costume or article of 
clothing or covering for any part of the body worn or intended to be 
worn by individuals.
    (k) The term beddings means sheets, covers, blankets, comforters, 
pillows, pillowcases, quilts, bedspreads, pads, and all other textile 
fiber products used or intended to be used on or about a bed or other 
place for reclining or sleeping but shall not include furniture, 
mattresses or box springs.
    (l) The term headwear means any textile fiber product worn 
exclusively on or about the head or face by individuals.
    (m) The term backings, when applied to floor coverings, means that 
part of a floor covering to which the pile, face, or outer surface is 
woven, tufted, hooked, knitted, or otherwise attached, and which 
provides the structural base of the floor covering. The term backing 
shall also include fabrics attached to the structural base of the floor 
covering in such a way as to form a part of such structural base, but 
shall not include the pile, face, or outer surface of the floor covering 
or any part thereof.
    (n) The term elastic material means a fabric composed of yarn 
consisting of an elastomer or a covered elastomer.
    (o) The term coated fabric means any fabric which is coated, filled, 
impregnated, or laminated with a continuous-film-forming polymeric 
composition in such a manner that the weight added to the base fabric is 
at least 35 percent of the weight of the fabric before coating, filling, 
impregnation, or lamination.
    (p) The term upholstered product means articles of furniture 
containing stuffing and shall include mattresses and box springs.
    (q) The term ornamentation means any fibers or yarns imparting a 
visibly discernible pattern or design to a yarn or fabric.
    (r) The term fiber trademark means a word or words used by a person 
to identify a particular fiber produced or sold by him and to 
distinguish it from fibers of the same generic class produced or sold by 
others. Such term shall not include any trade mark, product mark, house 
mark, trade name or other name which does not identify a particular 
fiber.
    (s) The term wool means the fiber from the fleece of the sheep or 
lamb or hair of the Angora or Cashmere goat (and may include the so-
called specialty fibers from the hair of the camel, alpaca, llama, and 
vicuna) which has never been reclaimed from any woven or felted wool 
product.
    (t) The term recycled wool means (1) the resulting fiber when wool 
has been woven or felted into a wool product which, without ever having 
been utilized in any way by the ultimate consumer, subsequently has been 
made into a fibrous state, or (2) the resulting fiber when wool or 
reprocessed wool has been spun, woven, knitted, or felted into a wool 
product which, after having been used in any way by the ultimate 
consumer, subsequently has been made into a fibrous state.
    (u) The terms mail order catalog and mail order promotional material 
mean any materials, used in the direct sale or direct offering for sale 
of textile products, that are disseminated to ultimate consumers in 
print or by electronic means, other than by broadcast, and that solicit 
ultimate consumers to purchase such textile products by mail, telephone, 
electronic mail, or some other method without examining the actual 
product purchased.

[24 FR 4480, June 2, 1959, as amended at 45 FR 44263, July 1, 1980; 50 
FR 15106, Apr. 17, 1985; 63 FR 7517, Feb. 13, 1998]



Sec.  303.2  General requirements.

    (a) Each textile fiber product, except those exempted or excluded 
under section 12 of the Act, shall be labeled or invoiced in conformity 
with the requirements of the Act and regulations.
    (b) Any advertising of textile fiber products subject to the Act 
shall be in conformity with the requirements of the Act and regulations.
    (c) The requirements of the Act and regulations shall not be 
applicable to products required to be labeled under the Wool Products 
Labeling Act of 1939 (Pub. L. 76-850, 15 U.S.C. 68, 54 Stat. 1128).
    (d) Any person marketing or handling textile fiber products who 
shall cause or direct a processor or finisher to label, invoice, or 
otherwise identify any textile fiber product with required information 
shall be responsible under

[[Page 231]]

the Act and regulations for any failure of compliance with the Act and 
regulations by reason of any statement or omission in such label, 
invoice, or other means of identification utilized in accordance with 
his direction: Provided, That nothing herein shall relieve the processor 
or finisher of any duty or liability to which he may be subject under 
the Act and regulations.



Sec.  303.3  Fibers present in amounts of less than 5 percent.

    (a) Except as permitted in sections 4(b)(1) and 4(b)(2) of the Act, 
as amended, no fiber present in the amount of less than 5 percent of the 
total fiber weight shall be designated by its generic name or fiber 
trademark in disclosing the constituent fibers in required information, 
but shall be designated as ``other fiber.'' When more than one of such 
fibers are present in a product, they shall be designated in the 
aggregate as ``other fibers.'' Provided, however, that nothing in this 
section shall be construed as prohibiting the disclosure of any fiber 
present in a textile fiber product which has a clearly established and 
definite functional significance when present in the amount contained in 
such product, as for example:

96 percent Acetate
4 percent Spandex.

    (b) In making such disclosure, all of the provisions of the Act and 
regulations in this part setting forth the manner and form of disclosure 
of fiber content information, including the provisions of Sec. Sec.  
303.17 and 303.41 of this part relating to the use of generic names and 
fiber trademarks, shall be applicable.

[63 FR 7518, Feb. 13, 1998]



Sec.  303.4  English language requirement.

    All required information shall be set out in the English language. 
If the required information appears in a language other than English, it 
also shall appear in the English language. The provisions of this 
section shall not apply to advertisements in foreign language newspapers 
or periodicals, but such advertising shall in all other respects comply 
with the Act and regulations.



Sec.  303.5  Abbreviations, ditto marks, and asterisks prohibited.

    (a) In disclosing required information, words or terms shall not be 
designated by ditto marks or appear in footnotes referred to by 
asterisks or other symbols in required information, and shall not be 
abbreviated except as permitted in Sec.  303.33(e) of this part.
    (b) Where the generic name of a textile fiber is required to appear 
in immediate conjunction with a fiber trademark in advertising, 
labeling, or invoicing, a disclosure of the generic name by means of a 
footnote, to which reference is made by use of an asterisk or other 
symbol placed next to the fiber trademark, shall not be sufficient in 
itself to constitute compliance with the Act and regulations.

[24 FR 4480, June 2, 1959, as amended at 65 FR 75156, Dec. 1, 2000]



Sec.  303.6  Generic names of fibers to be used.

    (a) Except where another name is permitted under the Act and 
regulations, the respective generic names of all fibers present in the 
amount of 5 per centum or more of the total fiber weight of the textile 
fiber product shall be used when naming fibers in the required 
information; as for example: ``cotton,'' ``rayon,'' ``silk,'' ``linen,'' 
``nylon,'' etc.
    (b) Where a textile fiber product contains the hair or fiber of a 
fur-bearing animal present in the amount 5 per centum or more of the 
total fiber weight of the product, the name of the animal producing such 
fiber may be used in setting forth the required information, provided 
the name of such animal is used in conjunction with the words ``fiber,'' 
``hair,'' or ``blend;'' as for example:

80 percent Rabbit hair.
20 percent Nylon.

 or

80 percent Silk.
20 percent Mink fiber.

    (c) The term fur fiber may be used to describe the hair or fur fiber 
or mixtures thereof of any animal or animals other than the sheep, lamb, 
Angora goat, Cashmere goat, camel, alpaca, llama or vicuna where such 
hair or fur fiber or mixture is present in the

[[Page 232]]

amount of 5 per centum or more of the total fiber weight of the textile 
fiber product and no direct or indirect representations are made as to 
the animal or animals from which the fiber so designated was obtained; 
as for example:

60 percent Cotton.
40 percent Fur fiber.

 or

50 percent Nylon.
30 percent Mink hair.
20 percent Fur fiber.

    (d) Where textile fiber products subject to the Act contain (1) wool 
or (2) recycled wool in amounts of five per centum or more of the total 
fiber weight, such fibers shall be designated and disclosed as wool or 
recycled wool as the case may be.

[24 FR 4480, June 2, 1959, as amended at 45 FR 44263, July 1, 1980]



Sec.  303.7  Generic names and definitions for manufactured fibers.

    Pursuant to the provisions of section 7(c) of the Act, the 
Commission hereby establishes the generic names for manufactured fibers, 
together with their respective definitions, set forth in this section, 
and the generic names for manufactured fibers, together with their 
respective definitions, set forth in International Organization for 
Standardization ISO 2076: 1999(E), ``Textiles--Man-made fibres--Generic 
names.'' This incorporation by reference was approved by the Director of 
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 
51. Copies may be obtained from the American National Standards 
Institute, 11 West 42nd St., 13th floor, New York, NY 10036. Copies may 
be inspected at the Federal Trade Commission, Room 130, 600 Pennsylvania 
Avenue, NW., Washington, DC 20580, or at the Office of the Federal 
Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
    (a) Acrylic. A manufactured fiber in which the fiber-forming 
substance is any long chain synthetic polymer composed of at least 85 
percent by weight of acrylonitrile units
[GRAPHIC] [TIFF OMITTED] TC29SE91.004

    (b) Modacrylic. A manufactured fiber in which the fiber-forming 
substance is any long chain synthetic polymer composed of less than 85 
percent but at least 35 percent by weight of acrylonitrile units
[GRAPHIC] [TIFF OMITTED] TC29SE91.005


except fibers qualifying under paragraph (j)(2) of this section and 
fibers qualifying under paragraph (q) of this section. (Sec. 7, 72 Stat. 
1717; 15 U.S.C. section 70e)
    (c) Polyester. A manufactured fiber in which the fiber-forming 
substance is any long chain synthetic polymer composed of at least 85% 
by weight of an ester of a substituted aromatic carboxylic acid, 
including but not restricted to substituted terephthalate units,
[GRAPHIC] [TIFF OMITTED] TC29SE91.006


and para substituted hydroxy-benzoate units,
[GRAPHIC] [TIFF OMITTED] TC29SE91.007


Where the fiber is formed by the interaction of two or more chemically 
distinct polymers (of which none exceeds 85% by weight), and contains 
ester groups as the dominant functional unit (at least 85% by weight of 
the total polymer content of the fiber), and which, if stretched at 
least 100%, durably and rapidly reverts substantially to its unstretched 
length when the tension is removed, the term elasterell-p may be used as 
a generic description of the fiber.
    (d) Rayon--A manufactured fiber composed of regenerated cellulose, 
as well as manufactured fibers composed of regenerated cellulose in 
which substituents have replaced not more than 15% of the hydrogens of 
the hydroxyl groups. Where the fiber is

[[Page 233]]

composed of cellulose precipitated from an organic solution in which no 
substitution of the hydroxyl groups takes place and no chemical 
intermediates are formed, the term lyocell may be used as a generic 
description of the fiber.
    (e) Acetate. A manufactured fiber in which the fiber-forming 
substance is cellulose acetate. Where not less than 92 percent of the 
hydroxyl groups are acetylated, the term triacetate may be used as a 
generic description of the fiber.
    (f) Saran. A manufactured fiber in which the fiber-forming substance 
is any long chain synthetic polymer composed of at least 80 percent by 
weight of vinylidene chloride units (-CH9-CCl2-).
    (g) Azlon. A manufactured fiber in which the fiber-forming substance 
is composed of any regenerated naturally occurring proteins.
    (h) Nytril. A manufactured fiber containing at least 85 percent of a 
long chain polymer of vinylidene dinitrile (-CH2-
C(CN)2-) where the vinylidene dinitrile content is no less 
than every other unit in the polymer chain.
    (i) Nylon. A manufactured fiber in which the fiber-forming substance 
is a long-chain synthetic polyamide in which less than 85 percent of the 
amide
[GRAPHIC] [TIFF OMITTED] TC29SE91.008


linkages are attached directly to two aromatic rings.
    (j) Rubber. A manufactured fiber in which the fiber-forming 
substance is comprised of natural or synthetic rubber, including the 
following categories:
    (1) A manufactured fiber in which the fiber-forming substance is a 
hydrocarbon such as natural rubber, polyisoprene, polybutadiene, 
copolymers of dienes and hydrocarbons, or amorphous (noncrystalline) 
polyolefins.
    (2) A manufactured fiber in which the fiber-forming substance is a 
copolymer of acrylonitrile and a diene (such as butadiene) composed of 
not more than 50 percent but at least 10 percent by weight of 
acrylonitrile units
[GRAPHIC] [TIFF OMITTED] TC29SE91.009


The term lastrile may be used as a generic description for fibers 
falling within this category.
    (3) A manufactured fiber in which the fiber-forming substance is a 
polychloroprene or a copolymer of chloroprene in which at least 35 
percent by weight of the fiber-forming substance is composed of 
chloroprene units
[GRAPHIC] [TIFF OMITTED] TC29SE91.010

    (k) Spandex. A manufactured fiber in which the fiber-forming 
substance is a long chain synthetic polymer comprised of at least 85 
percent of a segmented polyurethane.
    (l) Vinal. A manufactured fiber in which the fiber-forming substance 
is any long chain synthetic polymer composed of at least 50 percent by 
weight of vinyl alcohol units (-CH2-CHOH-), and in which the 
total of the vinyl alcohol units and any one or more of the various 
acetal units is at least 85 percent by weight of the fiber.
    (m) Olefin. A manufactured fiber in which the fiber-forming 
substance is any long chain synthetic polymer composed of at least 85 
percent by weight of ethylene, propylene, or other olefin units, except 
amorphous (noncrystalline) polyolefins qualifying under paragraph (j)(1) 
of this section [Rule 7]. Where the fiber-forming substance is a cross-
linked synthetic polymer, with low but significant crystallinity, 
composed of at least 95 percent by weight of ethylene and at least one 
other olefin unit, and the fiber is substantially elastic and heat 
resistant, the term lastol may be used as a generic description of the 
fiber.
    (n) Vinyon. A manufactured fiber in which the fiber-forming 
substance is any long chain synthetic polymer composed of at least 85 
percent by weight of vinyl chloride units (-CH2-CHCl-).
    (o) Metallic. A manufactured fiber composed of metal, plastic-coated

[[Page 234]]

metal, metal-coated plastic, or a core completely covered by metal.
    (p) Glass. A manufactured fiber in which the fiber-forming substance 
is glass.
    (q) Anidex. A manufactured fiber in which the fiber-forming 
substance is any long chain synthetic polymer composed of at least 50 
percent by weight of one or more esters of a monohydric alcohol and 
acrylic acid, CH2=CH--COOH.
    (r) Novoloid. A manufactured fiber containing at least 85 percent by 
weight of a cross-linked novolac.
    (s) Aramid. A manufactured fiber in which the fiber-forming 
substance is a long-chain synthetic polyamide in which at least 85 
percent of the amide
[GRAPHIC] [TIFF OMITTED] TC29SE91.011


linkages are attached directly to two aromatic rings.
    (t) Sulfar. A manufactured fiber in which the fiber-forming 
substance is a long chain synthetic polysulfide in which at least 85% of 
the sulfide (--S--) linkages are attached directly to two (2) aromatic 
rings.
    (u) PBI. A manufactured fiber in which the fiber-forming substance 
is a long chain aromatic polymer having reoccurring imidazole groups as 
an integral part of the polymer chain.
    (v) Elastoester. A manufactured fiber in which the fiber-forming 
substance is a long-chain synthetic polymer composed of at least 50% by 
weight of aliphatic polyether and at least 35% by weight of polyester, 
as defined in 16 CFR 303.7(c).
    (w) Melamine. A manufactured fiber in which the fiber-forming 
substance is a synthetic polymer composed of at least 50% by weight of a 
cross-linked melamine polymer.
    (x) Fluoropolymer. A manufactured fiber containing at least 95% of a 
long-chain polymer synthesized from aliphatic fluorocarbon monomers.
    (y) PLA. A manufactured fiber in which the fiber-forming substance 
is composed of at least 85% by weight of lactic acid ester units derived 
from naturally occurring sugars.

(Sec. 6, 72 Stat. 1717; 15 U.S.C. 70e)

[24 FR 4480, June 2, 1959; 24 FR 5737, July 17, 1959, as amended at 31 
FR 2652, Feb. 11, 1966; 31 FR 3002, Feb. 22, 1966; 34 FR 14595, Sept. 
19, 1969; 38 FR 21782, Aug. 13, 1973; 38 FR 34115, Dec. 11, 1973; 39 FR 
1834, Jan. 15, 1974; 51 FR 20807, 20809, June 9, 1986; 61 FR 16387, Apr. 
15, 1996; 62 FR 28344, May 23, 1997; 63 FR 7518, Feb. 13, 1998; 63 FR 
36174, July 2, 1998; 63 FR 71583, Dec. 28, 1998; 65 FR 75156, Dec. 1, 
2000; 67 FR 4903, Feb. 1, 2002; 67 FR 70839, Nov. 27, 2002; 68 FR 3816, 
Jan. 27, 2003]



Sec.  303.8  Procedure for establishing generic names for manufactured fibers.

    (a) Prior to the marketing or handling of a manufactured fiber for 
which no generic name has been established or otherwise recognized by 
the Commission, the manufacturer or producer thereof shall file a 
written application with the Commission, requesting the establishment of 
a generic name for such fiber, stating therein:
    (1) The reasons why the applicant's fiber should not be identified 
by one of the generic names established by the Commission in Sec.  303.7 
of this part;
    (2) The chemical composition of the fiber, including the fiber-
forming substances and respective percentages thereof, together with 
samples of the fiber;
    (3) Suggested names for consideration as generic, together with a 
proposed definition for the fiber;
    (4) Any other information deemed by the applicant to be pertinent to 
the application, including technical data in the form of test methods;
    (5) The earliest date on which the application proposes to market or 
handle the fiber in commerce for other than developmental or testing 
purposes.
    (b) Upon receipt of the application, the Commission will, within 
sixty (60) days, either deny the application or assign to the fiber a 
numerical or alphabetical symbol for temporary use during further 
consideration of such application.
    (c) After taking the necessary procedure in consideration of the 
application, the Commission in due course shall establish a generic name 
or advise the applicant of its refusal to grant the application and 
designate the

[[Page 235]]

proper existing generic name for the fiber.

[24 FR 4480, June 2, 1959, as amended at 63 FR 7518, Feb. 13, 1998]



Sec.  303.9  Use of fur-bearing animal names and symbols prohibited.

    (a) The advertising or the labeling of a textile fiber product shall 
not contain any names, words, depictions, descriptive matter, or other 
symbols which connote or signify a fur-bearing animal, unless such 
product or the part thereof in connection with which the names, words, 
depictions, descriptive matter, or other symbols are used is a fur 
product within the meaning of the Fur Products Labeling Act.
    (b) Subject to the provisions of paragraph (a) of this section and 
Sec.  303.6 of this part, a textile fiber product shall not be described 
or referred to in any manner in an advertisement or label with:
    (1) The name or part of the name of a fur-bearing animal, whether as 
a single word or a combination word, or any coined word which is 
phonetically similar to a fur-bearing animal name, or which is only a 
slight variation in spelling of a fur-bearing animal name or part of the 
name. As for example, such terms as ``Ermine,'' ``Mink,'' ``Persian,'' 
``Broadtail,'' ``Beaverton,'' ``Marmink,'' ``Sablelon,'' ``Lam,'' 
``Pershian,'' ``Minx,'' or similar terms shall not be used.
    (2) Any word or name symbolic of a fur-bearing animal by reason of 
conventional usage or by reason of its close relationship with fur-
bearing animals. As for example, such terms as ``guardhair,'' 
``underfur,'' and ``mutation,'' or similar terms, shall not be used.
    (c) Nothing contained herein shall prevent:
    (1) The nondeceptive use of animal names or symbols in referring to 
a textile fiber product where the fur of such animal is not commonly or 
commercially used in fur products, as that term is defined in the Fur 
Products Labeling Act, as for example ``kitten soft'', ``Bear Brand'', 
etc.
    (2) The nondeceptive use of a trademark or trade name containing the 
name, symbol, or depiction of a fur-bearing animal unless:
    (i) The textile fiber product in connection with which such 
trademark or trade name is used simulates a fur or fur product; or
    (ii) Such trademark or trade name is used in any advertisement of a 
textile fiber product together with any depiction which has the 
appearance of a fur or fur product; or
    (iii) The use of such trademark or trade name is prohibited by the 
Fur Products Labeling Act.

[24 FR 4480, June 2, 1959, as amended at 28 FR 722, Jan. 16, 1963]



Sec.  303.10  Fiber content of special types of products.

    (a) Where a textile product is made wholly of elastic yarn or 
material, with minor parts of non-elastic material for structural 
purposes, it shall be identified as to the percentage of the elastomer, 
together with the percentage of all textile coverings of the elastomer 
and all other yarns or materials used therein.

Where a textile fiber product is made in part of elastic material and in 
part of other fabric, the fiber content of such fabric shall be set 
forth sectionally by percentages as in the case of other fabrics. In 
such cases the elastic material may be disclosed by describing the 
material as elastic followed by a listing in order of predominance by 
weight of the fibers used in such elastic, including the elastomer, 
where such fibers are present by 5 per centum or more with the 
designation ``other fiber'' or ``other fibers'' appearing last when 
fibers required to be so designated are present. An example of labeling 
under this paragraph is:

Front and back non-elastic sections:
 50 percent Acetate.
 50 percent Cotton.
Elastic: Rayon, cotton, nylon, rubber.

    (b) Where drapery or upholstery fabrics are manufactured on hand-
operated looms for a particular customer after the sale of such fabric 
has been consummated, and the amount of the order does not exceed 100 
yards (91.44 m) of fabric, the required fiber content disclosure may be 
made by listing the fibers present in order of predominance by weight 
with any fiber or fibers required to be designated as ``other

[[Page 236]]

fiber'' or ``other fibers'' appearing last, as for example:

Rayon
Wool
Acetate
Metallic
Other fibers

    (c)(1) Where a manufactured textile fiber is essentially a physical 
combination or mixture of two or more chemically distinct constituents 
or components combined at or prior to the time of extrusion, which 
components if separately extruded would each fall within different 
existing definitions of textile fibers as set forth in Sec.  303.7 of 
this part (Rule 7), the fiber content disclosure as to such fiber, shall 
for all purposes under the regulations in this part (i) disclose such 
fact in the required fiber content information by appropriate 
nondeceptive descriptive terminology, such as ``biconstituent fiber'' or 
``multiconstituent fiber,'' (ii) set out the components contained in the 
fiber by the appropriate generic name specified in Sec.  303.7 of this 
part (Rule 7) in the order of their predominance by weight, and (iii) 
set out the respective percentages of such components by weight.
    (2) If the components of such fibers are of a matrix-fibril 
configuration, the term matrix-fibril fiber or matrix fiber may be used 
in setting forth the information required by this paragraph.
    (3) Examples of proper fiber content designations under this 
paragraph are:

100% Biconstituent Fiber
(65% Nylon, 35% Polyester)
80% Matrix Fiber (60% Nylon, 40% Polyester)
15% Polyester
5% Rayon

    (4) All of the provisions as to fiber content disclosures contained 
in the Act and regulations, including the provisions relative to fiber 
content tolerances and disclosures of fibers present in amounts of less 
than 5 percentum of the total fiber weight, shall also be applicable to 
the designations and disclosures prescribed by this paragraph.

[25 FR 7044, July 26, 1960, as amended at 30 FR 14253, Nov. 13, 1965; 34 
FR 12134 July 19, 1969; 61 FR 11544, Mar. 21, 1996]



Sec.  303.11  Floor coverings containing backings, fillings, and paddings.

    In disclosing the required fiber content information as to floor 
coverings containing exempted backings, fillings, or paddings, the 
disclosure shall be made in such manner as to indicate that it relates 
only to the face, pile, or outer surface of the floor covering and not 
to the backing, filling, or padding. Examples of the form of marking 
these types of floor coverings as to fiber content are as follows:

100% Cotton Pile
Face--60% Rayon, 40% Cotton
Outer Surface--100% Wool



Sec.  303.12  Trimmings of household textile articles.

    (a) Trimmings incorporated in articles of wearing apparel and other 
household textile articles may, among other forms of trim, include: (1) 
Rick-rack, tape, belting, binding, braid, labels (either required or 
non-required), collars, cuffs, wrist bands, leg bands, waist bands, 
gussets, gores, welts, and findings, including superimposed garters in 
hosiery, and elastic materials and threads inserted in or added to the 
basic product or garment in minor proportion for holding, reinforcing or 
similar structural purposes; (2) decorative trim, whether applied by 
embroidery, overlay, applique, or attachment; and (3) decorative 
patterns or designs which are an integral part of the fabric out of 
which the household textile article is made: Provided, That such 
decorative trim or decorative pattern or design, as specified in 
paragraphs (a) (2) and (3) of this section, does not exceed 15 percent 
of the surface area of the household textile article. If no 
representation is made as to the fiber content of the decorative trim or 
decoration, as provided for in paragraphs (a) (2) and (3) of this 
section, the fiber content designation of the basic fabric shall be 
followed by the statement ``exclusive of decoration.''
    (b) The term findings may also include elastic material which 
constitutes a part of the basic fabric or material out of which the 
household textile article is made, where such elastic material does not 
exceed 20 percent of the surface area of the household textile article: 
Provided, That the

[[Page 237]]

required information as to fiber content of products subject to this 
paragraph is followed by the statement ``exclusive of elastic.''



Sec.  303.13  Sale of remnants and products made of remnants.

    (a) In disclosing the required fiber content information as to 
remnants of fabric which are for practical purposes of unknown or 
undeterminable fiber content:
    (1) The fiber content disclosure of such remnants of fabrics may be 
designated in the required information as ``remnants of undetermined 
fiber content.''
    (2) Where such remnants of fabrics are displayed for sale at retail, 
a conspicuous sign may, in lieu of individual labeling, be used in 
immediate conjunction with such display, stating with respect to 
required fiber content disclosure that the goods are ``remnants of 
undetermined fiber content.''
    (3) Where textile fiber products are made of such remnants, the 
required fiber content information of the products may be disclosed as 
``made of remnants of undetermined fiber content.'' If any 
representations as to fiber content are made with respect to such 
remnants, the provisions of this paragraph shall not apply.
    (b) Where remnants of fabrics are marketed or handled in bales, 
bundles, or packages and are all of the same fiber content or are 
designated in the manner permitted by paragraph (a) of this section, the 
individual remnants need not be labeled if the bales, bundles, or 
packages containing such remnants are labeled with the required 
information including fiber content percentages or the designation 
permitted by paragraph (a) of this section.
    (c) Where remnants of fabrics of the same fiber content are 
displayed for sale at retail, a conspicuous sign may, in lieu of 
individual labeling, be used in immediate conjunction with such display, 
stating the fiber content information with respect to such remnants; as 
for example: ``remnants, 100 percent cotton,'' ``remnants, 50 percent 
rayon, 50 percent acetate,'' etc.



Sec.  303.14  Products containing unknown fibers.

    (a) Where a textile fiber product is made from miscellaneous scraps, 
rags, odd lots, secondhand materials, textile by-products, or waste 
materials of unknown, and for practical purposes, undeterminable fiber 
content, the required fiber content disclosure may, when truthfully 
applicable, in lieu of the fiber content disclosure otherwise required 
by the Act and regulations, indicate that such product is composed of 
miscellaneous scraps, rags, odd lots, textile by-products, secondhand 
materials (in case of secondhand materials, words of like import may be 
used) or waste materials, as the case may be, of unknown or undetermined 
fiber content, as for example:

Made of miscellaneous scraps of undetermined fiber content
100% unknown fibers--rags
All undetermined fibers--textile by-products
100% miscellaneous odd lots of undetermined fiber content
Secondhand materials--fiber content unknown
Made of unknown fibers--waste materials

    (b) Where a textile fiber product is made in part from miscellaneous 
scraps, rags, odd lots, textile by-products, second-hand materials or 
waste materials of unknown and, for practical purposes, undeterminable 
fiber content together with a percentage of known or determinable 
fibers, the required fiber content disclosure may, when truthfully 
applicable, in lieu of the fiber content disclosure otherwise required 
by the Act and regulations, indicate the percentage of miscellaneous 
scraps, rags, odd lots, secondhand materials (in case of secondhand 
materials, words of like import may be used), textile by-products, or 
waste materials of unknown or undetermined fiber content and the 
percentage of known fibers, as for example:

45% Rayon
30% Acetate
25% Miscellaneous scraps of undetermined fiber content.

60% Cotton
40% Unknown fibers--waste materials.

40% Acrylic
20% Modacrylic
40% Undetermined fibers--odd lots.

50% Polyester

[[Page 238]]

30% Cotton
20% Textile by-products of undetermined fiber content.

50% Rayon
50% Secondhand materials--fiber content unknown.

45% Acetate
30% Cotton
25% Miscellaneous rags--undetermined fiber content.

    (c) No representation as to fiber content shall be made as to any 
textile product or any portion of a textile fiber product designated as 
composed of unknown or undetermined fibers. If any such representation 
is made, a full and complete fiber content disclosure shall be required.
    (d) Nothing contained in this section shall excuse a full disclosure 
as to fiber content if the same is known or practically ascertainable.

[25 FR 4317, May 14, 1960]



Sec.  303.15  Required label and method of affixing.

    (a) A label is required to be affixed to each textile product and, 
where required, to its package or container in a secure manner. Such 
label shall be conspicuous and shall be of such durability as to remain 
attached to the product and its package throughout any distribution, 
sale, resale and until sold and delivered to the ultimate consumer.
    (b) Each textile fiber product with a neck must have a label 
disclosing the country of origin affixed to the inside center of the 
neck midway between the shoulder seams or in close proximity to another 
label affixed to the inside center of the neck. The fiber content and RN 
or name of the company may be disclosed on the same label as the country 
of origin or on another conspicuous and readily accessible label or 
labels on the inside or outside of the garment. On all other textile 
products, the required information shall be disclosed on a conspicuous 
and readily accessible label or labels on the inside or outside of the 
product. The country of origin disclosure must always appear on the 
front side of the label. Other required information may appear either on 
the front side or the reverse side of a label, provided that the 
information is conspicuous and readily accessible.
    (c) In the case of hosiery products, this section shall not be 
construed as requiring the affixing of a label to each hosiery product 
contained in a package if, (1) such hosiery products are intended for 
sale to the ultimate consumer in such package, (2) such package has 
affixed to it a label bearing the required information for the hosiery 
products contained in the package, and (3) the information on the label 
affixed to the package is equally applicable to each textile fiber 
product contained therein.

[50 FR 15106, Apr. 17, 1985, as amended at 63 FR 7518, Feb. 13, 1998]



Sec.  303.16  Arrangement and disclosure of information on labels.

    (a) Subject to the provisions of Sec.  303.15(b), information 
required by the Act and regulations in this part may appear on any label 
or labels attached to the textile fiber product, including the care 
label required by 16 CFR part 423, provided all the pertinent 
requirements of the Act and regulations in this part are met and so long 
as the combination of required information and non-required information 
is not misleading. The required information shall include the following:
    (1) The generic names and percentages by weight of the constituent 
fibers present in the textile fiber product, excluding permissive 
ornamentation, in amounts of 5 percent or more and any fibers disclosed 
in accordance with Sec.  303.3(a) shall appear in order of predominance 
by weight with any percentage of fiber or fibers required to be 
designated as ``other fiber'' or ``other fibers'' appearing last.
    (2) The name, provided for in Sec.  303.19, or registered 
identification number issued by the Commission, of the manufacturer or 
of one or more persons marketing or handling the textile fiber product.
    (3) The name of the country where such product was processed or 
manufactured, as provided for in Sec.  303.33.
    (b) All parts of the required information shall be set forth in such 
a manner as to be clearly legible, conspicuous, and readily accessible 
to the prospective purchaser. All parts of the fiber content information 
shall appear in

[[Page 239]]

type or lettering of equal size and conspicuousness.
    (c) Subject to the provisions of Sec.  303.17, any non-required 
information or representations placed on the product shall not minimize, 
detract from, or conflict with required information and shall not be 
false, deceptive, or misleading.
    (d) Non-deceptive terms which are properly and truthfully 
descriptive of a fiber may be used in conjunction with the generic name 
of such fiber; as for example: ``100 percent cross-linked rayon,'' ``100 
percent solution dyed acetate,'' ``100 percent combed cotton,'' ``100 
percent nylon 66,'' etc.

[24 FR 4480, June 2, 1959, as amended at 25 FR 4317, May 14, 1960; 30 FR 
14254, Nov. 13, 1965; 30 FR 15313, Dec. 11, 1965; 50 FR 15107, Apr. 17, 
1985; 53 FR 31315, Aug. 18, 1988; 63 FR 7518, Feb. 13, 1998]



Sec.  303.17  Use of fiber trademarks and generic names on labels.

    (a) A non-deceptive fiber trademark may be used on a label in 
conjunction with the generic name of the fiber to which it relates. 
Where such a trademark is placed on a label in conjunction with the 
required information, the generic name of the fiber must appear in 
immediate conjunction therewith, and such trademark and generic name 
must appear in type or lettering of equal size and conspicuousness.
    (b) Where a generic name or a fiber trademark is used on any label, 
whether required or non-required, a full and complete fiber content 
disclosure shall be made in accordance with the Act and regulations the 
first time the generic name or fiber trademark appears on the label.
    (c) If a fiber trademark is not used in the required information, 
but is used elsewhere on the label as non-required information, the 
generic name of the fiber shall accompany the fiber trademark in legible 
and conspicuous type or lettering the first time the trademark is used.
    (d) No fiber trademark or generic name shall be used in non-required 
information on a label in such a manner as to be false, deceptive, or 
misleading as to fiber content, or to indicate directly or indirectly 
that a textile fiber product is composed wholly or in part of a 
particular fiber, when such is not the case.



Sec.  303.18  Terms implying fibers not present.

    Words, coined words, symbols or depictions, (a) which constitute or 
imply the name or designation of a fiber which is not present in the 
product, (b) which are phonetically similar to the name or designation 
of such a fiber, or (c) which are only a slight variation of spelling 
from the name or designation of such a fiber shall not be used in such a 
manner as to represent or imply that such fiber is present in the 
product.

[30 FR 13693, Oct. 28, 1965]



Sec.  303.19  Name or other identification required to appear on labels.

    (a) The name required by the Act to be used on labels shall be the 
name under which the person is doing business. Where a person has a word 
trademark, used as a house mark, registered in the United States Patent 
Office, such word trademark may be used on labels in lieu of the name 
otherwise required: Provided, The owner of such word trademark furnishes 
the Commission a copy of the registration prior to its use. No 
trademark, trade names, or other names except those provided for above 
shall be used for required identification purposes.
    (b) Registered identification numbers, as provided for in Sec.  
303.20 of this part, may be used for identification purposes in lieu of 
the required name.



Sec.  303.20  Registered identification numbers.

    (a) Registered numbers for use as the required identification in 
lieu of the name on textile fiber product labels, as provided in section 
4(b)(3) of the Act, will be issued by the Commission to qualified 
persons residing in the United States upon receipt of an application 
duly executed in the form set out in paragraph (d) of this section.
    (b)(1) Registered identification numbers shall be used only by the 
person or concern to whom they are issued, and such numbers are not 
transferable or assignable.
    (2) Registered identification numbers shall be subject to 
cancellation whenever any such number was procured or

[[Page 240]]

has been used improperly or contrary to the requirements of the Acts 
administered by the Federal Trade Commission, and regulations 
promulgated thereunder, or when otherwise deemed necessary in the public 
interest.
    (3) Registered identification numbers shall be subject to 
cancellation if the Commission fails to receive prompt notification of 
any change in name, business address, or legal business status of a 
person or firm to whom a registered identification number has been 
assigned, by application duly executed in the form set out in paragraph 
(d) of this section, reflecting the current name, business address, and 
legal business status of the person or firm.
    (c) Registered identification numbers assigned under this section 
may be used on labels required in labeling products subject to the 
provisions of the Wool Products Labeling Act and Fur Products Labeling 
Act, and numbers previously assigned by the Commission under such Acts 
may be used as and for the required name in labeling under this Act. 
When so used by the person or firm to whom assigned, the use of the 
numbers shall be construed as identifying and binding the applicant as 
fully and in all respects as though assigned under the specific Act for 
which it is used.
    (d) Form to apply for a registered identification number or to 
update information pertaining to an existing number (the form is 
available upon request from: Enforcement Division, Federal Trade 
Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580, or on 
the Internet at http://www.ftc.gov; application may also be made 
directly on the Internet):

[[Page 241]]

[GRAPHIC] [TIFF OMITTED] TR01DE00.024


[24 FR 4480, June 2, 1959, as amended at 48 FR 12516, Mar. 25, 1983; 63 
FR 7518, Feb. 13, 1998; 63 FR 71583, Dec. 28, 1998; 65 FR 75156, Dec. 1, 
2000]

[[Page 242]]



Sec.  303.21  Marking of samples, swatches, or specimens and products 
sold therefrom.

    (a) Where samples, swatches, or specimens of textile fiber products 
subject to the Act are used to promote or effect sales of such textile 
fiber products, the samples, swatches, or specimens, as well as the 
products themselves, shall be labeled to show their respective fiber 
contents and other required information: Provided, That such samples, 
swatches or specimens need not be labeled:
    (1) If the samples, swatches, or specimens are less than two square 
inches (12.9 cm\2\) in area and the information otherwise required to 
appear on the label is clearly, conspicuously, and non-deceptively 
disclosed on accompanying promotional matter in accordance with the Act 
and regulations.
    (2) If the samples, swatches, or specimens are keyed to a catalogue 
to which reference is necessary in order to complete the sale of the 
textile fiber products, and which catalogue at the necessary point of 
reference clearly, conspicuously, and non-deceptively discloses the 
information otherwise required to appear on the label in accordance with 
the Act and regulations; or
    (3) If such samples, swatches, or specimens are not used to effect 
sales to ultimate consumers and are not in the form intended for sale or 
delivery to, or for use by, the ultimate consumer, and are accompanied 
by an invoice or other paper showing the required information.
    (b) Where properly labeled samples, swatches, or specimens are used 
to effect the sale of articles of wearing apparel or other household 
textile articles which are manufactured specifically for a particular 
customer after the sale is consummated, the articles of wearing apparel 
or other household textile articles need not be labeled if they are of 
the same fiber content as the samples, swatches, or specimens from which 
the sale was effected and an invoice or other paper accompanies them 
showing the information otherwise required to appear on the label.

[24 FR 4480, June 2, 1959, as amended at 61 FR 11544, Mar. 21, 1996]



Sec.  303.22  Products containing linings, interlinings, fillings, and 
paddings.

    In disclosing the required information as to textile fiber products, 
the fiber content of any linings, interlinings, fillings, or paddings 
shall be set forth separately and distinctly if such linings, 
interlinings, fillings, or paddings are incorporated in the product for 
warmth rather than for structural purposes, or if any express or implied 
representations are made as to their fiber content. Examples are as 
follows:

100% Nylon
Interlining: 100% Rayon
Covering: 100% Rayon
Filling: 100% Cotton.



Sec.  303.23  Textile fiber products containing superimposed or added fibers.

    Where a textile fiber product is made wholly of one fiber or a blend 
of fibers with the exception of an additional fiber in minor proportion 
superimposed or added in certain separate and distinct areas or sections 
for reinforcing or other useful purposes, the product may be designated 
according to the fiber content of the principal fiber or blend of 
fibers, with an exception naming the superimposed or added fiber, giving 
the percentage thereof in relation to the total fiber weight of the 
principal fiber or blend of fibers, and indicating the area or section 
which contains the superimposed or added fiber. Examples of this type of 
fiber content disclosure, as applied to products having reinforcing 
fibers added to a particular area or section, are as follows:

55% Cotton
45% Rayon
Except 5% Nylon added to toe and heel.
All Cotton except 1% Nylon added to neckband.



Sec.  303.24  Pile fabrics and products composed thereof.

    The fiber content of pile fabrics or products composed thereof may 
be stated on the label in such segregated form as will show the fiber 
content of the face or pile and of the back or base, with percentages of 
the respective fibers as they exist in the face or pile and in the back 
or base: Provided, That

[[Page 243]]

in such disclosure the respective percentages of the face and back be 
given in such manner as will show the ratio between the face and the 
back. Examples of the form of marking pile fabric as to fiber content 
provided for in this section are as follows:

100% Nylon Pile
100% Cotton Back
(Back constitutes 60% of fabric and pile 40%).
Face--60% Rayon, 40% Nylon
Back--70% Cotton, 30% Rayon
(Face constitutes 60% of fabric and back 40%).



Sec.  303.25  Sectional disclosure of content.

    (a) Permissive. Where a textile fiber product is composed of two or 
more sections which are of different fiber composition, the required 
information as to fiber content may be separated in the same label in 
such manner as to show the fiber composition of each section.
    (b) Mandatory. The disclosure as above provided shall be made in all 
instances where such form of marking is necessary to avoid deception.



Sec.  303.26  Ornamentation.

    (a)(1) Where the textile fiber product contains fiber ornamentation 
not exceeding five per centum of the total fiber weight of the product 
and the stated percentages of the fiber content are exclusive of such 
ornamentation, the label or any invoice used in lieu thereof shall 
contain a phrase or statement showing such fact; as for example:

60% Cotton
40% Rayon

Exclusive of Ornamentation;

 or
All Cotton
Exclusive of Ornamentation.

    (2) The fiber content of such ornamentation may be disclosed where 
the percentage of the ornamentation in relation to the total fiber 
weight of the principal fiber or blend of fibers is shown; as for 
example:

70% Nylon
30% Acetate
Exclusive of 4% Metallic Ornamentation;

 or

100% Rayon
Exclusive of 3% Silk Ornamentation.

    (b) Where the fiber ornamentation exceeds five per centum, it shall 
be included in the statement of required percentages of fiber content.
    (c) Where the ornamentation constitutes a distinct section of the 
product, sectional disclosure may be made in accordance with Sec.  
303.25 of this part.



Sec.  303.27  Use of the term ``All'' or ``100%.''

    Where a textile fiber product or part thereof is comprised wholly of 
one fiber, other than any fiber ornamentation, decoration, elastic, or 
trimming as to which fiber content disclosure is not required, either 
the word All or the term 100% may be used in labeling, together with the 
correct generic name of the fiber and any qualifying phrase, when 
required; as for example: ``100% Cotton,'' ``All Rayon, Exclusive of 
Ornamentation,'' ``100% Acetate, Exclusive of Decoration,'' ``All Nylon, 
Exclusive of Elastic,'' etc.



Sec.  303.28  Products contained in packages.

    When textile products are marketed and delivered in a package which 
is intended to remain unbroken and intact until after delivery to the 
utlimate consumer, each textile product in the package, except hosiery, 
and the package shall be labeled with the required information. If the 
package is transparent to the extent it allows for a clear reading of 
the required information on the textile product, the package is not 
required to be labeled.

[50 FR 15107, Apr. 17, 1985]



Sec.  303.29  Labeling of pairs or products containing two or more units.

    (a) Where a textile fiber product consists of two or more parts, 
units, or items of different fiber content, a separate label containing 
the required information shall be affixed to each of such parts, units 
or items showing the required information as to such part, unit, or 
item: Provided, That where such parts, units, or items are marketed or 
handled as a single product or ensemble and are sold and delivered to 
the ultimate consumer as a single

[[Page 244]]

product or ensemble, the required information may be set out on a single 
label in such a manner as to separately show the fiber composition of 
each part, unit, or item.
    (b) Where garments, wearing apparel, or other textile fiber products 
are marketed or handled in pairs or ensembles of the same fiber content, 
only one unit of the pair or ensemble need be labeled with the required 
information when sold and delivered to the ultimate consumer.

[24 FR 4480, June 2, 1959, as amended at 25 FR 4318, May 14, 1960]



Sec.  303.30  Textile fiber products in form for consumer.

    A textile fiber product shall be considered to be in the form 
intended for sale or delivery to, or for use by, the ultimate consumer 
when the manufacturing or processing of the textile fiber product is 
substantially complete. The fact that minor or insignificant details of 
the manufacturing or processing have not been completed shall not excuse 
the labeling of such products as to the required information. For 
example, a garment must be labeled even though such matters as the 
finishing of a hem or cuff or the affixing of buttons thereto remain to 
be completed.



Sec.  303.31  Invoice in lieu of label.

    Where a textile fiber product is not in the form intended for sale, 
delivery to, or for use by the ultimate consumer, an invoice or other 
paper may be used in lieu of a label, and such invoice or other paper 
shall show, in addition to the name and address of the person issuing 
the invoice or other paper, the fiber content of such product as 
provided in the Act and regulations as well as any other required 
information.



Sec.  303.32  Products containing reused stuffing.

    Any upholstered product, mattress, or cushion which contains 
stuffing which has been previously used as stuffing in any other 
upholstered product, mattress, or cushion shall have securely attached 
thereto a substantial tag or label, at least 2 inches (5.08 cm) by 3 
inches (7.62 cm) in size, and statements thereon conspicuously stamped 
or printed in the English language and in plain type not less than \1/3\ 
inch (8.38 mm) high, indicating that the stuffing therein is composed in 
whole or in part of ``reused stuffing,'' ``secondhand stuffing,'' 
``previously used stuffing,'' or ``used stuffing.''

[61 FR 11544, Mar. 21, 1996]



Sec.  303.33  Country where textile fiber products are processed or manufactured.

    (a) In addition to the other information required by the Act and 
Regulations:
    (1) Each imported textile fiber product shall be labeled with the 
name of the country where such imported product was processed or 
manufactured;
    (2) Each textile fiber product completely made in the United States 
of materials that were made in the United States shall be labeled using 
the term Made in U.S.A. or some other clear and equivalent term.
    (3) Each textile fiber product made in the United States, either in 
whole or in part of imported materials, shall contain a label disclosing 
these facts; for example:

Made in USA of imported fabric

 or

Knitted in USA of imported yarn

    and
    (4) Each textile fiber product partially manufactured in a foreign 
country and partially manufactured in the United States shall contain on 
a label the following information:
    (i) The manufacturing process in the foreign country and in the USA; 
for example:

``Imported cloth, finished in USA''

 or

``Sewn in USA of imported components''

 or

``Made in [foreign country], finished in USA''

 or

``Scarf made in USA of fabric made in China''

 or

``Comforter Filled, Sewn and Finished in the U.S. With Shell Made in 
China''

 or
``Made in [Foreign Country]/fabric made in USA''

 or

[[Page 245]]

``Knit in USA, assembled in [Foreign Country]''.

    (ii) When the U.S. Customs Service requires an origin label on the 
unfinished product, the manufacturing processes as required in paragraph 
(a)(4)(i) of this section or the name of the foreign country required by 
Customs, for example:

``Made in (foreign country)''

    (b) For the purpose of determining whether a product should be 
marked under paragraphs (a) (2), (3), or (4) of this section, a 
manufacturer needs to consider the origin of only those materials that 
are covered under the Act and that are one step removed from that 
manufacturing process. For example, a yarn manufacturer must identify 
fiber if it is imported, a cloth manufacturer must identify imported 
yarn and a household product manufacturer must identify imported cloth 
or imported yarn for household products made directly from yarn, or 
imported fiber used as filling for warmth.
    (c) The term country means the political entity known as a nation. 
Except for the United States, colonies, possessions or protectorates 
outside the boundaries of the mother country shall be considered 
separate countries, and the name thereof shall be deemed acceptable in 
designating the country where the textile fiber product was processed or 
manufactured unless the Commission shall otherwise direct.
    (d) The country where the imported textile fiber product was 
principally made shall be considered to be the country where such 
textile fiber product was processed or manufactured. Further work or 
material added to the textile fiber product in another country must 
effect a basic change in form in order to render such other country the 
place where such textile fiber product was processed or manufactured.
    (e) The English name of the country where the imported textile fiber 
product was processed or manufactured shall be used. The adjectival form 
of the name of the country will be accepted as the name of the country 
where the textile fiber product was processed or manufactured, provided 
the adjectival form of the name does not appear with such other words so 
as to refer to a kind or species of product. Variant spellings which 
clearly indicate the English name of the country, such as Brasil for 
Brazil and Italie for Italy, are acceptable. Abbreviations which 
unmistakably indicate the name of a country, such as ``Gt. Britain'' for 
``Great Britain,'' are acceptable.
    (f) Nothing in this rule shall be construed as limiting in any way 
the information required to be disclosed on labels under the provisions 
of any Tariff Act of the United States or regulations prescribed by the 
Secretary of the Treasury.

[24 FR 4480, June 2, 1959, as amended at 50 FR 15107, Apr. 17, 1985; 63 
FR 7521, Feb. 13, 1998; 65 FR 75158, Dec. 1, 2000]



Sec.  303.34  Country of origin in mail order advertising.

    When a textile fiber product is advertised in any mail order catalog 
or mail order promotional material, the description of such product 
shall contain a clear and conspicuous statement that the product was 
either made in U.S.A., imported, or both. Other words or phrases with 
the same meaning may be used. The statement of origin required by this 
section shall not be inconsistent with the origin labeling of the 
product being advertised.

[50 FR 15107, Apr. 17, 1985]



Sec.  303.35  Use of terms ``virgin'' or ``new.''

    The terms virgin or new as descriptive of a textile fiber product, 
or any fiber or part thereof, shall not be used when the product or part 
so described is not composed wholly of new or virgin fiber which has 
never been reclaimed from any spun, woven, knitted, felted, bonded, or 
similarly manufactured product.



Sec.  303.36  Form of separate guaranty.

    (a) The following are suggested forms of separate guaranties under 
section 10 of the Act which may be used by a guarantor residing in the 
United States on or as part of an invoice or other paper relating to the 
marketing or handling of any textile fiber products listed and 
designated therein, and showing the date of such invoice or other paper 
and the signature and address of the guarantor.

[[Page 246]]

    (1) General form. We guarantee that the textile fiber products 
specified herein are not misbranded nor falsely nor deceptively 
advertised or invoiced under the provisions of the Textile Fiber 
Products Identification Act and rules and regulations thereunder.
    (2) Guaranty based on guaranty. Based upon a guaranty received, we 
guarantee that the textile fiber products specified herein are not 
misbranded nor falsely nor deceptively advertised or invoiced under the 
provisions of the Textile Fiber Products Identification Act and rules 
and regulations thereunder.

    Note: The printed name and address on the invoice or other paper 
will suffice to meet the signature and address requirements.

    (b) The mere disclosure of required information including the fiber 
content of a textile fiber product on a label or on an invoice or other 
paper relating to its marketing or handling shall not be considered a 
form of separate guaranty.



Sec.  303.37  Form of continuing guaranty from seller to buyer.

    Under section 10 of the Act, a seller residing in the United States 
may give a buyer a continuing guaranty to be applicable to all textile 
fiber products sold or to be sold. The following is the prescribed form 
of continuing guaranty from seller to buyer.

    We, the undersigned, guaranty that all textile fiber products now 
being sold or which may hereafter be sold or delivered to ------ are 
not, and will not be misbranded nor falsely nor deceptively advertised 
or invoiced under the provisions of the Textile Fiber Products 
Identification Act and rules and regulations thereunder. This guaranty 
effective until ------.
    Dated, signed, and certified this ---- day of ----, 19----, at ----
-------- (City), ------ (State or Territory) ---------- (name under 
which business is conducted.)
    Under penalty of perjury, I certify that the information supplied in 
this form is true and correct.
________________________________________________________________________
Signature of Proprietor, Principal Partner, or Corporate Official
________________________________________________________________________
Name (Print or Type) Title

[48 FR 12518, Mar. 25, 1983]



Sec.  303.38  Continuing guaranty filed with Federal Trade Commission.

    (a)(1) Under section 10 of the act any person residing in the United 
States and marketing or handling textile fiber products may file a 
continuing guaranty with the Federal Trade Commission. When filed with 
the Commission a continuing guaranty shall be fully executed in 
duplicate. Forms for use in preparing continuing guaranties will be 
supplied by the Commission upon request.
    (2) Continuing guaranties filed with the Commission shall continue 
in effect until revoked. The guarantor shall promptly report any change 
in business status to the Commission.
    (b) Prescribed form for a continuing guaranty:

[[Page 247]]

[GRAPHIC] [TIFF OMITTED] TR29DE98.001

    (c) Any person who has a continuing guaranty on file with the 
Commission may, during the effective dates of the guaranty, give notice 
of such fact by setting forth on the invoice or other paper covering the 
marketing or handling of the product guaranteed the following:


[[Page 248]]


    Continuing guaranty under the Textile Fiber Products Identification 
Act filed with the Federal Trade Commission.

    (d) Any person who falsely represents in writing that he has a 
continuing guaranty on file with the Federal Trade Commission when such 
is not a fact shall be deemed to have furnished a false guaranty under 
section 10(b) of the Act.

[24 FR 4486, June 2, 1959, as amended at 48 FR 12517, Mar. 25, 1983; 63 
FR 7521, Feb. 18, 1998; 63 FR 71585, Dec. 28, 1998]



Sec.  303.39  Maintenance of records.

    (a) Pursuant to the provisions of section 6 of the Act, every 
manufacturer of a textile fiber product subject to the Act, irrespective 
of whether any guaranty has been given or received, shall maintain 
records showing the information required by the Act and Regulations with 
respect to all such textile fiber products made by such manufacturer. 
Such records shall show:
    (1) The generic names and percentages by weight of the constituent 
fibers present in the textile fiber product, exclusive of permissive 
ornamentation, in amounts of five per centum or more.
    (2) The name, provided for in Sec.  303.19, or registered 
identification number issued by the Commission, of the manufacturer or 
of one or more persons marketing or handling the textile fiber product.
    (3) The name of the country where such product was processed or 
manufactured as provided for in Sec.  303.33.

The purpose of the records is to permit a determination that the 
requirements of the Act and Regulations have been met and to establish a 
traceable line of continuity from raw material through processing to 
finished product.
    (b) Any person substituting a stamp, tag, label, or other 
identification pursuant to section 5(b) of the Act shall keep such 
records as will show the information set forth on the stamp, tag, label, 
or other identification that he removed and the name or names of the 
person or persons from whom such textile fiber product was received.
    (c) The records required to be maintained pursuant to the provisions 
of this rule shall be preserved for at least three years.

[24 FR 4480, June 2, 1959, as amended at 53 FR 31315, Aug. 18, 1988]



Sec.  303.40  Use of terms in written advertisements that imply presence of a fiber.

    The use of terms in written advertisements, including advertisements 
disseminated through the Internet and similar electronic media, that are 
descriptive of a method of manufacture, construction, or weave, and that 
by custom and usage are also indicative of a textile fiber or fibers, or 
the use of terms in such advertisements that constitute or connote the 
name or presence of a fiber or fibers, shall be deemed to be an 
implication of fiber content under section 4(c) of the Act, except that 
the provisions of this section shall not be applicable to non-deceptive 
shelf or display signs in retail stores indicating the location of 
textile fiber products and not intended as advertisements.

[63 FR 7523, Feb. 13, 1998]



Sec.  303.41  Use of fiber trademarks and generic names in advertising.

    (a) In advertising textile fiber products, the use of a fiber 
trademark shall require a full disclosure of the fiber content 
information required by the Act and regulations in at least one instance 
in the advertisement.
    (b) Where a fiber trademark is used in advertising textile fiber 
products containing more than one fiber, other than permissible 
ornamentation, such fiber trademark and the generic name of the fiber 
must appear in the required fiber content information in immediate 
proximity and conjunction with each other in plainly legible type or 
lettering of equal size and conspicuousness.
    (c) Where a fiber trademark is used in advertising textile fiber 
products containing only one fiber, other than permissive ornamentation, 
such fiber trademark and the generic name of the fiber must appear in 
immediate proximity and conjunction with each other in plainly legible 
and conspicuous type or lettering at least once in the advertisement.

[[Page 249]]

    (d) Where a fiber trademark or generic name is used in non-required 
information in advertising, such fiber trademark or generic name, shall 
not be used in such a manner as to be false, deceptive, or misleading as 
to fiber content, or to indicate, directly or indirectly, that a textile 
fiber product is composed wholly or in part of a particular fiber, when 
such is not the case.



Sec.  303.42  Arrangement of information in advertising textile fiber products.

    (a) Where a textile fiber product is advertised in such manner as to 
require disclosure of the information required by the Act and 
regulations, all parts of the required information shall be stated in 
immediate conjunction with each other in legible and conspicuous type or 
lettering of equal size and prominence. In making the required 
disclosure of the fiber content of the product, the generic names of 
fibers present in an amount 5 percent or more of the total fiber weight 
of the product, together with any fibers disclosed in accordance with 
Sec.  303.3(a), shall appear in order of predominance by weight, to be 
followed by the designation ``other fiber'' or ``other fibers'' if a 
fiber or fibers required to be so designated are present.
    (b) Non-required information or representations shall in no way be 
false, deceptive, or misleading as to fiber content and shall not 
include any names, terms, or representations prohibited by the Act and 
regulations. Such non-required information or representations shall not 
be set forth or so used as to interfere with, minimize, or detract from 
the required information.
    (c) Non-deceptive terms which are properly and truthfully 
descriptive of a fiber may be used in conjunction with the generic name 
of such fiber; as for example: ``cross-linked rayon,'' ``solution dyed 
acetate,'' ``combed cotton,'' ``nylon 66,'' etc.

[24 FR 4480, June 2, 1959, as amended at 30 FR 14254, Nov. 13, 1965; 30 
FR 15313, Dec. 11, 1965; 63 FR 7523, Feb. 13, 1998]



Sec.  303.43  Fiber content tolerances.

    (a) A textile fiber product which contains more than one fiber shall 
not be deemed to be misbranded as to fiber content percentages if the 
percentages by weight of any fibers present in the total fiber content 
of the product, exclusive of permissive ornamentation, do not deviate or 
vary from the percentages stated on the label in excess of 3 percent of 
the total fiber weight of the product. For example, where the label 
indicates that a particular fiber is present in the amount of 40 
percent, the amount of such fiber present may vary from a minimum of 37 
percent of the total fiber weight of such product to a maximum of 43 
percent of the total fiber weight of such product.
    (b) Where the percentage of any fiber or fibers contained in a 
textile fiber product deviates or varies from the percentage stated on 
the label by more than the tolerance or variation provided in paragraph 
(a) of this section, such product shall be misbranded unless the person 
charged proves that the entire deviation or variation from the fiber 
content percentages stated on the label resulted from unavoidable 
variations in manufacture and despite the exercise of due care.
    (c) Where representations are made to the effect that a textile 
fiber product is composed wholly of one fiber, the tolerance provided in 
section 4(b)(2) of the Act and paragraph (a) of this section shall not 
apply, except as to permissive ornamentation where the textile fiber 
product is represented to be composed of one fiber ``exclusive of 
ornamentation.''



Sec.  303.44  Products not intended for uses subject to the act.

    Textile fiber products intended for uses not within the scope of the 
Act and regulations or intended for uses in other textile fiber products 
which are exempted or excluded from the Act shall not be subject to the 
labeling and invoicing requirements of the Act and regulations: 
Provided, An invoice or other paper covering the marketing or handling 
of such products is given, which indicates that the products are not 
intended for uses subject to the Textile Fiber Products Identification 
Act.

[[Page 250]]



Sec.  303.45  Exclusions from the act.

    (a) Pursuant to section 12(b) of the Act, the Commission hereby 
excludes from the operation of the Act:
    (1) All textile fiber products except:
    (i) Articles of wearing apparel:
    (ii) Handkerchiefs;
    (iii) Scarfs;
    (iv) Beddings;
    (v) Curtains and casements;
    (vi) Draperies;
    (vii) Tablecloths, napkins, and doilies;
    (viii) Floor coverings;
    (ix) Towels;
    (x) Wash cloths and dish cloths;
    (xi) Ironing board covers and pads;
    (xii) Umbrellas and parasols;
    (xiii) Batts;
    (xiv) Products subject to section 4(h) of the Act;
    (xv) Flags with heading or more than 216 square inches (13.9 dm\2\) 
in size;
    (xvi) Cushions;
    (xvii) All fibers, yarns and fabrics (including narrow fabrics 
except packaging ribbons);
    (xviii) Furniture slip covers and other covers or coverlets for 
furniture;
    (xix) Afghans and throws;
    (xx) Sleeping bags;
    (xxi) Antimacassars and tidies;
    (xxii) Hammocks;
    (xxiii) Dresser and other furniture scarfs.
    (2) Belts, suspenders, arm bands, permanently knotted neckties, 
garters, sanitary belts, diaper liners, labels (either required or non-
required) individually and in rolls, looper clips intended for 
handicraft purposes, book cloth, artists' canvases, tapestry cloth, and 
shoe laces.
    (3) All textile fiber products manufactured by the operators of 
company stores and offered for sale and sold exclusively to their own 
employees as ultimate consumers.
    (4) Coated fabrics and those portions of textile fiber products made 
of coated fabrics.
    (5) Secondhand household textile articles which are discernibly 
secondhand or which are marked to indicate their secondhand character.
    (6) Non-woven products of a disposable nature intended for one-time 
use only.
    (7) All curtains, casements, draperies, and table place mats, or any 
portions thereof otherwise subject to the Act, made principally of 
slats, rods, or strips, composed of wood, metal, plastic, or leather.
    (8) All textile fiber products in a form ready for the ultimate 
consumer procured by the military services of the United States which 
are bought according to specifications, but shall not include those 
textile fiber products sold and distributed through post exchanges, 
sales commissaries, or ship stores; provided, however, that if the 
military services sell textile fiber products for nongovernmental 
purposes the information with respect to the fiber content of such 
products shall be furnished to the purchaser thereof who shall label 
such products in conformity with the Act and regulations before such 
products are distributed for civilian use.
    (9) All hand woven rugs made by Navajo Indians which have attached 
thereto the ``Certificate of Genuineness'' supplied by the Indian Arts 
and Crafts Board of the United States Department of Interior. The term 
Navajo Indian means any Indian who is listed on the register of the 
Navajo Indian Tribe or is eligible for listing thereon.
    (b) The exclusions provided for in paragraph (a) of this section 
shall not be applicable (1) if any representations as to the fiber 
content of such products are made on any label or in any advertisement 
without making a full and complete fiber content disclosure on such 
label or in such advertisement in accordance with the Act and 
regulations with the exception of those products excluded by paragraph 
(a)(6) of this section, or (2) if any false, deceptive, or misleading 
representations are made as to the fiber content of such products.
    (c) The exclusions from the Act provided in paragraph (a) of this 
section are in addition to the exemptions from the Act provided in 
section 12(a) of the Act and shall not affect or limit such exemptions.

(Sec. 12, 72 Stat. 1723; 15 U.S.C. 70j)

[24 FR 4480, June 2, 1959, as amended at 25 FR 4318, May 14, 1960; 25 FR 
7044, July 26, 1960; 29 FR 48, Jan. 3, 1964; 61 FR 11544, Mar. 21, 1996]

[[Page 251]]



PART 304_RULES AND REGULATIONS UNDER THE HOBBY PROTECTION ACT--Table of Contents




Sec.
304.1 Terms defined.
304.2 General requirement.
304.3 Applicability.
304.4 Application of other law or regulation.
304.5 Marking requirements for imitation political items.
304.6 Marking requirements for imitation numismatic items.

    Authority: 15 U.S.C. 2101 et seq.

    Source: 40 FR 5496, Feb. 6, 1975, unless otherwise noted.



Sec.  304.1  Terms defined.

    (a) Act means the Hobby Protection Act (approved November 29, 1973; 
Pub. L. 93-167, 87 Stat. 686, (15 U.S.C. 2101 et seq.)).
    (b) Commerce has the same meanings as such term has under the 
Federal Trade Commission Act.
    (c) Commission means the Federal Trade Commission.
    (d) Imitation numismatic item means an item which purports to be, 
but in fact is not, an original numismatic item or which is a 
reproduction, copy, or counterfeit of an original numismatic item. Such 
term includes an original numismatic item which has been altered or 
modified in such a manner that it could reasonably purport to be an 
original numismatic item other than the one which was altered or 
modified. The term shall not include any re-issue or re-strike of any 
original numismatic item by the United States or any foreign government.
    (e) Imitation political item means an item which purports to be, but 
in fact is not, an original political item, or which is a reproduction, 
copy or counterfeit of an original item.
    (f) Original numismatic item means anything which has been a part of 
a coinage or issue which has been used in exchange or has been used to 
commemorate a person, object, place, or event. Such term includes coins, 
tokens, paper money, and commemorative medals.
    (g) Original political item means any political button, poster, 
literature, sticker, or any advertisement produced for use in any 
political cause.
    (h) Person means any individual, group, association, partnership, or 
any other business entity.
    (i) Regulations means any or all regulations prescribed by the 
Federal Trade Commission pursuant to the Act.
    (j) United States means the States, the District of Columbia, and 
the Commonwealth of Puerto Rico.
    (k) Diameter of a reproduction means the length of the longest 
possible straight line connecting two points on the perimeter of the 
reproduction.

[40 FR 5496, Feb. 6, 1975, as amended at 53 FR 38942, Oct. 4, 1988]



Sec.  304.2  General requirement.

    Imitation political or numismatic items subject to the Act shall be 
marked in conformity with the requirements of the Act and the 
regulations promulgated thereunder. Any violation of these regulations 
shall constitute a violation of the Act and of the Federal Trade 
Commission Act.



Sec.  304.3  Applicability.

    Any person engaged in the manufacturing, or importation into the 
United States for introduction into or distribution in commerce, of 
imitation political or imitation numismatic items shall be subject to 
the requirements of the Act and the regulations promulgated thereunder.



Sec.  304.4  Application of other law or regulation.

    The provisions of these regulations are in addition to, and not in 
substitution for or limitation of, the provisions of any other law or 
regulation of the United States (including the existing statutes and 
regulations prohibiting the reproduction of genuine currency) or of the 
law or regulation of any State.



Sec.  304.5  Marking requirements for imitation political items.

    (a) An imitation political item which is manufactured in the United 
States, or imported into the United States for introduction into or 
distribution in commerce, shall be plainly and permanently marked with 
the calendar year in which such item was manufactured.

[[Page 252]]

    (b) The calendar year shall be marked upon the item legibly, 
conspicuously and nondeceptively, and in accordance with the further 
requirements of these regulations.
    (1) The calendar year shall appear in arabic numerals, shall be 
based upon the Gregorian calendar and shall consist of four digits.
    (2) The calendar year shall be marked on either the obverse or the 
reverse surface of the item. It shall not be marked on the edge of the 
item.
    (3) An imitation political item of incusable material shall be 
incused with the calendar year in sans-serif numerals. Each numeral 
shall have a vertical dimension of not less than two millimeters (2.0 
mm) and a minimum depth of three-tenths of one millimeter (0.3 mm) or 
one-half (\1/2\) the thickness of the reproduction, whichever is the 
lesser. The minimum total horizontal dimension for the four numerals 
composing the calendar year shall be six millimeters (6.0 mm).
    (4) An imitation political button, poster, literature, sticker, or 
advertisement composed of nonincusable material shall be imprinted with 
the calendar year in sans-serif numerals. Each numeral shall have a 
vertical dimension of not less than two millimeters (2.0 mm). The 
minimum total horizontal dimension of the four numerals composing the 
calendar year shall be six millimeters (6.0 mm).



Sec.  304.6  Marking requirements for imitation numismatic items.

    (a) An imitation numismatic item which is manufactured in the United 
States, or imported into the United States for introduction into or 
distribution in commerce, shall be plainly and permanently marked 
``COPY''.
    (b) The word ``COPY'' shall be marked upon the item legibly, 
conspicuously, and nondeceptively, and in accordance with the further 
requirements of these regulations.
    (1) The word ``COPY'' shall appear in capital letters, in the 
English language.
    (2) The word ``COPY'' shall be marked on either the obverse or the 
reverse surface of the item. It shall not be marked on the edge of the 
item.
    (3) An imitation numismatic item of incusable material shall be 
incused with the word ``COPY'' in sans-serif letters having a vertical 
dimension of not less than two millimeters (2.0 mm) or not less than 
one-sixth of the diameter of the reproduction, and a minimum depth of 
three-tenths of one millimeter (0.3 mm) or to one-half (\1/2\) the 
thickness of the reproduction, whichever is the lesser. The minimum 
total horizontal dimension of the word ``COPY'' shall be six millimeters 
(6.0 mm) or not less than one-half of the diameter of the reproduction.
    (4) An imitation numismatic item composed of nonincusable material 
shall be imprinted with the word ``COPY'' in sans-serif letters having a 
vertical dimension of not less than two millimeters (2.0 mm) or not less 
than one-sixth of the diameter of the reproduction. The minimum total 
horizontal dimension of the word ``COPY'' shall be six millimeters (6.0 
mm) or not less than one-half of the diameter of the reproduction.

[40 FR 5496, Feb. 6, 1975, as amended at 53 FR 38942, Oct. 4, 1988]



 PART 305_RULE CONCERNING DISCLOSURES REGARDING ENERGY CONSUMPTION 
 
 AND WATER USE OF CERTAIN HOME APPLIANCES AND OTHER PRODUCTS REQUIRED 
 UNDER THE ENERGY POLICY AND CONSERVATION ACT (``APPLIANCE LABELING 
 RULE'')--Table of Contents




                                  Scope

Sec.
305.1 Scope of the regulations in this part.

                               Definitions

305.2 Definitions.
305.3 Description of covered products.

                                 General

305.4 Prohibited acts.

                                 Testing

305.5 Determinations of estimated annual energy consumption, estimated 
          annual operating cost, and energy efficiency rating, and of 
          water use rate.
305.6 Sampling.
305.7 Determinations of capacity.
305.8 Submission of data.

[[Page 253]]

                Representative Average Unit Energy Costs

305.9 Representative average unit energy costs.
305.10 Ranges of estimated annual energy consumption and energy 
          efficiency ratings.

                          Required Disclosures

305.11 Labeling for covered products.
305.12 Additional information relating to energy consumption.
305.13 Promotional material displayed or distributed at point of sale.
305.14 Catalogs.

                         Additional Requirements

305.15 Test data records.
305.16 Required testing by designated laboratory.

                           Effect of This Part

305.17 Effect on other law.
305.18 Stayed or invalid parts.
305.19 Exemptions.

Appendix A1 to Part 305--Refrigerators With Automatic Defrost
Appendix A2 to Part 305--Refrigerators and Refrigerator-Freezers With 
          Manual Defrost
Appendix A3 to Part 305--Refrigerator-Freezers With Partial Automatic 
          Defrost
Appendix A4 to Part 305--Refrigerator-Freezers With Automatic Defrost 
          With Top-Mounted Freezer Without Through-the-Door Ice Service
Appendix A5 to Part 305--Refrigerator-Freezers With Automatic Defrost 
          With Side-Mounted Freezer Without Through-the-Door Ice Service
Appendix A6 to Part 305--Refrigerator-Freezers With Automatic Defrost 
          With Bottom-Mounted Freezer Without Through-the-Door Ice 
          Service
Appendix A7 to Part 305--Refrigerator-Freezers With Automatic Defrost 
          With Top-Mounted Freezer With Through-the-Door Ice Service
Appendix A8 to Part 305--Refrigerator-Freezers With Automatic Defrost 
          With Side-Mounted Freezer With Through-the-Door Ice Service
Appendix B1 to Part 305--Upright Freezers With Manual Defrost
Appendix B2 to Part 305--Upright Freezers With Automatic Defrost
Appendix B3 to Part 305--Chest Freezers and All Other Freezers
Appendix C1 to Part 305--Compact Dishwashers
Appendix C2 to Part 305--Standard Dishwashers
Appendix D1 to Part 305--Water Heaters--Gas
Appendix D2 to Part 305--Water Heaters--Electric
Appendix D3 to Part 305--Water Heaters--Oil
Appendix D4 to Part 305--Water Heaters--Instantaneous--Gas
Appendix D5 to Part 305--Water Heaters--Heat Pump
Appendix E to Part 305--Room Air Conditioners
Appendix F to Part 305--Clothes Washers
Appendix F1 to Part 305--xxx
Appendix F2 to Part 305--xxx
Appendix G1 to Part 305--Furnaces--Gas
Appendix G2 to Part 305--Furnaces--Electric
Appendix G3 to Part 305--Furnaces--Oil
Appendix G4 to Part 305--Mobil Home Furnaces
Appendix G5 to Part 305--Boilers--Gas (Except Steam)
Appendix G6 to Part 305--Boilers--Gas (Steam)
Appendix G7 to Part 305--Boilers--Oil
Appendix G8 to Part 305--Boilers--Electric
Appendix H to Part 305--Cooling Performance and Cost for Central Air 
          Conditioners
Appendix I to Part 305--Heating Performance and Cost for Central Air 
          Conditioners
Appendix J1 to Part 305--Pool Heaters--Gas
Appendix J2 to Part 305--Pool Heaters--Oil
Appendix K to Part 305--Suggested Data Reporting Format
Appendix L to Part 305--Sample Labels

    Authority: 42 U.S.C. 6294.

    Source: 52 FR 46894, Dec. 10, 1987, unless otherwise noted.

                                  Scope



Sec.  305.1  Scope of the regulations in this part.

    The rule in this part establishes requirements for consumer 
appliance products, as hereinafter described, in commerce, as 
``commerce'' is defined in the Energy Policy and Conservation Act, 42 
U.S.C. 6291, with respect to:
    (a) Labeling and/or marking the products with information required 
by this part indicating their operating cost (or different useful 
measure of energy consumption) and related information, disclosing their 
water use rate and related information, or stating their compliance with 
applicable standards under section 325 of the Energy Policy and 
Conservation Act, 42 U.S.C. 6295;

[[Page 254]]

    (b) Including in printed matter displayed or distributed at the 
point of sale of such products, or including in any catalog from which 
the products may be purchased, information concerning their water use or 
their energy consumption;
    (c) Including on the labels, separately attaching to the products, 
or shipping with the products, additional information relating to energy 
consumption, energy efficiency, or energy cost; and
    (d) Making representations, in writing or in broadcast advertising, 
respecting the water use, energy consumption, or energy efficiency of 
the products, or the cost of water used or energy consumed by the 
products.

[52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28034, July 5, 1989]

                               Definitions



Sec.  305.2  Definitions.

    (a) Act means the Energy Policy and Conservation Act (Pub. L. 94-
163), and amendments thereto.
    (b) Commission means the Federal Trade Commission.
    (c) Manufacturer means any person who manufactures, produces, 
assembles, or imports a consumer appliance product. Assembly operations 
which are solely decorative are not included.
    (d) Retailer means a person to whom a consumer appliance product is 
delivered or sold, if such delivery or sale is for purposes of sale or 
distribution in commerce to purchasers who buy such product for purposes 
other than resale. The term retailer includes purchasers of appliances 
who install such appliances in newly constructed or newly rehabilitated 
housing, or mobile homes, with the intent to sell the covered appliances 
as part of the sale of such housing or mobile homes.
    (e) Distributor means a person (other than a manufacturer or 
retailer) to whom a consumer appliance product is delivered or sold for 
purposes of distribution in commerce.
    (f) Private labeler means an owner of a brand or trademark on the 
label of a consumer appliance product which bears a private label.
    (g) Range of comparability means a group of models within a class of 
covered products, each model of which satisfies approximately the same 
consumer needs.
    (h) Estimated annual energy consumption and estimated annual 
operating cost--(1) Estimated annual energy consumption means the energy 
or (for products described in sections 305.3(n)-(q)) water that is 
likely to be consumed annually in representative use of a consumer 
product, as determined in accordance with tests prescribed under section 
323 of the Act (42 U.S.C. 6293).
    (i) Kilowatt-hour use per year, or kWh/yr., means estimated annual 
energy consumption expressed in kilowatt-hours of electricity.
    (ii) Therm use per year, or therms/yr., means estimated annual 
energy consumption expressed in therms of natural gas.
    (iii) Gallon use per year, or gallons/yr., means estimated annual 
energy consumption expressed in gallons of propane or No. 2 heating oil.
    (2) Estimated annual operating cost means the aggregate retail cost 
of the energy that is likely to be consumed annually in representative 
use of a consumer product, as determined in accordance with tests 
prescribed under section 323 of the Act (42 U.S.C. 6293).
    (i) Energy efficiency rating means the following product-specific 
energy usage descriptors: annual fuel utilization efficiency (AFUE) for 
furnaces; energy efficiency ratio (EER) for room air conditioners; 
seasonal energy efficiency ratio (SEER) for the cooling function of 
central air conditioners and heat pumps; heating seasonal performance 
factor (HSPF) for the heating function of heat pumps; and, thermal 
efficiency (TE) for pool heaters, as these descriptors are determined in 
accordance with tests prescribed under section 323 of the Act (42 U.S.C. 
6293). These product-specific energy usage descriptors shall be used in 
satisfying all the requirements of this part.
    (j) Range of estimated annual energy consumption means the range of 
estimated annual energy consumption per year of all models within a 
designated range of comparability.
    (k) Range of energy efficiency ratings means the range of energy 
efficiency ratings for all models within a designated range of 
comparability.

[[Page 255]]

    (l) New covered product, as used in Sec.  305.4, means a covered 
product the title of which has not passed to a purchaser who buys the 
product for purposes other than resale or leasing for a period in excess 
of one year.
    (m) Catalog means printed material which contains the terms of sale, 
retail price, and instructions for ordering, from which a retail 
consumer can order a covered product.
    (n) Consumer product means any article (other than an automobile, as 
``automobile'' is defined in 15 U.S.C. 2001(1) [sec. 501(1) of the Motor 
Vehicle Information and Cost Savings Act]) of a type--
    (1) which in operation consumes, or is designed to consume, energy 
or, with respect to showerheads, faucets, water closets, and urinals, 
water; and
    (2) which, to any significant extent, is distributed in commerce for 
personal use or consumption by individuals;

without regard to whether such article or such type is in fact 
distributed in commerce for personal use or consumption by an 
individual, except that such term includes fluorescent lamp ballasts, 
general service fluorescent lamps, medium base compact fluorescent 
lamps, general service incandescent lamps (including incandescent 
reflector lamps), showerheads, faucets, water closets, and urinals 
distributed in commerce for personal or commercial use or consumption.
    (o) Consumer appliance product means any of the following consumer 
products, excluding those products designed solely for use in 
recreational vehicles and other mobile equipment:
    (1) Refrigerators, refrigerator-freezers, and freezers which can be 
operated by alternating current electricity, excluding--
    (i) any type designed to be used without doors; and
    (ii) any type which does not include a compressor and condenser unit 
as an integral part of the cabinet assembly.
    (2) Dishwashers.
    (3) Water heaters.
    (4) Room air conditioners.
    (5) Clothes washers.
    (6) Clothes dryers.
    (7) Central air conditioners and central air conditioning heat 
pumps.
    (8) Furnaces.
    (9) Direct heating equipment.
    (10) Pool heaters.
    (11) Kitchen ranges and ovens.
    (12) Television sets.
    (13) Fluorescent lamp ballasts.
    (14) General service fluorescent lamps.
    (15) Medium base compact fluorescent lamps.
    (16) General service incandescent lamps, including incandescent 
reflector lamps.
    (17) Showerheads.
    (18) Faucets.
    (19) Water closets.
    (20) Urinals.
    (21) Any other type of consumer product which the Department of 
Energy classifies as a covered product under section 322(b) of the Act 
(42 U.S.C. 6292).
    (p) Covered product means any consumer product or consumer appliance 
product described in Sec.  305.3 of this part.
    (q) Luminaire means a complete lighting unit consisting of a 
fluorescent lamp or lamps, together with parts designed to distribute 
the light, to position and protect such lamps, and to connect such lamps 
to the power supply through the ballast.
    (r) Ballast efficacy factor means the relative light output divided 
by the power input of a fluorescent lamp ballast, as measured under test 
conditions specified in American National Standards Institute (``ANSI'') 
standard C82.2-1984, or as may be prescribed by the Secretary of Energy. 
Copies of ANSI standard C82.2-1984 may be obtained from the American 
National Standards Institute, 11 West 42nd St., New York, NY 10036.
    (s) Bulb shape means the shape of the lamp, especially the glass 
portion.
    (t) Base for lamps means the portion of the lamp which screws into 
the socket.
    (u) Color rendering index or CRI for lamps means the measure of the 
degree of color shift objects undergo when illuminated by a light source 
as compared with the color of those same objects when illuminated by a 
reference source of comparable color temperature.
    (v) Correlated color temperature for lamps means the absolute 
temperature of a blackbody whose chromaticity

[[Page 256]]

most nearly resembles that of the light source.
    (w) Lamp type means all lamps designated as having the same 
electrical and lighting characteristics and made by one manufacturer.
    (x) Wattage for lamps means the total electrical power consumed by a 
lamp in watts, after an initial seasoning period and including, for 
fluorescent lamps, arc watts plus cathode watts.
    (y) Light output for lamps means the total luminous flux (power) of 
a lamp in lumens.
    (z) Life and lifetime for lamps mean length of operating time of a 
statistically large group of lamps between first use and failure of 50 
percent of the group.
    (aa) Lamp efficacy means the light output of a lamp divided by its 
wattage, expressed in lumens per watt (LPW).
    (bb) Average lamp efficacy means the lamp efficacy readings taken 
over a statistically significant period of manufacture with the readings 
averaged over that period.
    (cc) IES means the Illuminating Engineering Society of North America 
and, as used herein, is the prefix for test procedures adopted by IES.
    (dd) ASME means the American Society of Mechanical Engineers and, as 
used herein, is the prefix for national standards and codes adopted by 
ASME.
    (ee) ANSI means the American National Standards Institute and, as 
used herein, is the prefix for national standards and codes adopted by 
ANSI.
    (ff) Water use means the quantity of water flowing through a 
showerhead, faucet, water closet, or urinal at point of use, determined 
in accordance with test procedures under section 323 of the Act, 42 
U.S.C. 6293.
    (gg) Flushometer valve means a valve attached to a pressured water 
supply pipe and so designed that, when actuated, it opens the line for 
direct flow into the fixture at a rate and quantity to operate properly 
the fixture, and then gradually closes to provide trap reseal in the 
fixture in order to avoid water hammer. The pipe to which this device is 
connected is in itself of sufficient size that, when opened, will allow 
the device to deliver water at a sufficient rate of flow for flushing 
purposes.
    (hh) Flow restricting or controlling spout end device means an 
aerator used in a faucet.

[52 FR 46894, Dec. 10, 1987, as amended at 59 FR 34031, July 1, 1994; 59 
FR 49563, Sept. 28, 1994; 59 FR 67524, Dec. 29, 1994]



Sec.  305.3  Description of covered products.

    (a) Refrigerators and refrigerator-freezers. (1) Electric 
refrigerator means a cabinet designed for the refrigerated storage of 
food at temperatures above 32 [deg]F., and having a source of 
refrigeration requiring single phase, alternating current electric 
energy input only. An electric refrigerator may include a compartment 
for the freezing and storage of food at temperatures below 32 [deg]F., 
but does not provide a separate low temperature compartment designed for 
the freezing and storage of food at temperatures below 8 [deg]F. An 
``all-refrigerator'' is an electric refrigerator which does not include 
a compartment for the freezing and long time storage of food at 
temperatures below 32 [deg]F (0.0 [deg]C). An ``all-refrigerator'' may 
include a compartment of 0.50 cubic capacity (14.2 liters) or less for 
the freezing and storage of ice.
    (2) Electric refrigerator-freezer means a cabinet which consists of 
two or more compartments with at least one of the compartments designed 
for the refrigerated storage of food at temperatures above 32 [deg]F. 
and with at least one of the compartments designed for the freezing and 
storage of food at temperatures below 8 [deg]F. which may be adjusted by 
the user to a temperature of 0 [deg]F. or below. The source of 
refrigeration requires single phase, alternating current electric energy 
input only.
    (b) Freezer means a cabinet designed as a unit for the freezing and 
storage of food at temperatures of 0 [deg]F. or below, and having a 
source of refrigeration requiring single phase, alternating current 
electric energy input only.
    (c) Dishwasher means a cabinetlike appliance which, with the aid of 
water and detergent, washes, rinses, and dries (when a drying process is 
included) dishware, glassware, eating utensils and most cooking utensils 
by chemical, mechanical, and/or electrical means and discharges to the 
plumbing drainage system.

[[Page 257]]

    (1) Water Heating Dishwasher means a dishwasher which is designed 
for heating cold inlet water (nominal 50 [deg]F.) or a dishwasher for 
which the manufacturer recommends operation with a nominal inlet water 
temperature of 120 [deg]F. and may operate at either of these inlet 
water temperatures by providing internal water heating to above 120 
[deg]F. in at least one wash phase of the normal cycle.
    (2) [Reserved]
    (d)(1) Water heater means a product which utilizes oil, gas, or 
electricity to heat potable water for use outside the heater upon 
demand, including--
    (i) Storage type units which heat and store water at a 
thermostatically controlled temperature, including gas storage water 
heaters with an input of 75,000 Btu per hour or less, oil storage water 
heaters with an input of 105,000 Btu per hour or less, and electric 
storage water heaters with an input of 12 kilowatts or less;
    (ii) Instantaneous type units which heat water but contain no more 
than one gallon of water per 4,000 Btu per hour of input, including gas 
instantaneous water heaters with an input of 200,000 Btu per hour or 
less, oil instantaneous water heaters with an input of 210,000 Btu per 
hour or less, and electric instantaneous water heaters with an input of 
12 kilowatts or less; and
    (iii) Heat pump type units, with a maximum current rating of 24 
amperes at a voltage no greater than 250 volts, which are products 
designed to transfer thermal energy from one temperature level to a 
higher temperature level for the purpose of heating water, including all 
ancillary equipment such as fans, storage tanks, pumps, or controls 
necessary for the device to perform its function.
    (2) The requirements of this part are limited to those water heaters 
for which the Department of Energy has adopted and published test 
procedures for measuring energy usage.
    (e) Room air conditioner means a consumer product, other than a 
packaged terminal air conditioner, which is powered by a single phase 
electric current and which is an encased assembly designed as a unit for 
mounting in a window or through the wall for the purpose of providing 
delivery of conditioned air to an enclosed space. It includes a prime 
source of refrigeration and may include a means for ventilating and 
heating.
    (f) Clothes washer means a consumer product designed to clean 
clothes, utilizing a water solution of soap and/or detergent and 
mechanical agitation or other movement, and must be one of the following 
classes: automatic clothes washers, semi-automatic clothes washers, and 
other clothes washers.
    (1) Automatic clothes washer means a class of clothes washer which 
has a control system capable of scheduling a pre-selected combination of 
operations, such as regulation of water fill level, and performance of 
wash, rinse, drain and spin functions, without the need for the user to 
intervene subsequent to the initiation of machine operation. Some models 
may require user intervention to initiate these different segments of 
the cycle after the machine has begun operation, but they do not require 
the user to intervene to regulate the water temperature by adjusting the 
external water faucet valves.
    (2) Semi-automatic clothes washer means a class of clothes washer 
that is the same as an automatic clothes washer except that the user 
must intervene to regulate the water temperature by adjusting the 
external water faucet valves.
    (3) Other clothes washer means a class of clothes washer which is 
not an automatic or semi-automatic clothes washer.
    (g) Furnaces. (1) Furnace means a product which utilizes only 
single-phase electric current, or single-phase electric current or DC 
current in conjunction with natural gas, propane, or home heating oil, 
and which--
    (i) Is designed to be the principal heating sources for the living 
space of a residence;
    (ii) Is not contained within the same cabinet with a central air 
conditioner whose rated cooling capacity is above 65,000 Btu per hour;
    (iii) Is an electric central furnace, electric boiler, forced-air 
central furnace, gravity central furnace, or low pressure steam or hot 
water boiler; and
    (iv) Has a heat input rate of less than 300,000 Btu per hour for 
electric boilers

[[Page 258]]

and low pressure steam or hot water boilers and less than 225,000 Btu 
per hour for forced-air central furnaces, gravity central furnaces, and 
electric central furnaces.
    (2) Electric central furnace means a furnace designed to supply heat 
through a system of ducts with air as the heating medium, in which heat 
is generated by one or more electric resistance heating elements and the 
heated air is circulated by means of a fan or blower.
    (3) Forced air central furnace means a gas or oil burning furnace 
designed to supply heat through a system of ducts with air as the 
heating medium. The heat generated by combustion of gas or oil is 
transferred to the air within a casing by conduction through heat 
exchange surfaces and is circulated through the duct system by means of 
a fan or blower.
    (4) Gravity central furnace means a gas fueled furnace which depends 
primarily on natural convection for circulation of heated air and which 
is designed to be used in conjunction with a system of ducts.
    (5) Electric boiler means an electrically powered furnace designed 
to supply low pressure steam or hot water for space heating application. 
A low pressure steam boiler operates at or below 15 pounds per square 
inch gauge (psig) steam pressure; a hot water boiler operates at or 
below 160 psig water pressure and 250 [deg]F. water temperature.
    (6) Low pressure steam or hot water boiler means an electric, gas or 
oil burning furnace designed to supply low pressure steam or hot water 
for space heating application. A low pressure steam boiler operates at 
or below 15 pounds psig steam pressure; a hot water boiler operates at 
or below 160 psig water pressure and 250 [deg]F. water temperature.
    (7) Outdoor furnace or boiler is a furnace or boiler normally 
intended for installation out-of-doors or in an unheated space (such as 
an attic or a crawl space).
    (8) Weatherized warm air furnace or boiler means a furnace or boiler 
designed for installation outdoors, approved for resistance to wind, 
rain, and snow, and supplied with its own venting system.
    (h) Central air conditioner means a product, other than a packaged 
terminal air conditioner, which is powered by single phase electric 
current, air cooled, rated below 65,000 Btu per hour, not contained 
within the same cabinet as a furnace, the rated capacity of which is 
above 225,000 Btu per hour, and is a heat pump or a cooling only unit.
    (1) Condenser-evaporator coil combination means a condensing unit 
made by one manufacturer and one of several evaporator coils, either 
manufactured by the same manufacturer or another manufacturer, intended 
to be combined with that particular condensing unit.
    (2) Condensing unit means a component of a ``central air 
conditioner'' which is designed to remove heat absorbed by the 
refrigerant and to transfer it to the outside environment, and which 
consists of an outdoor coil, compressor(s), and air moving device.
    (3) Evaporator coil means a component of a central air conditioner 
which is designed to absorb heat from an enclosed space and transfer the 
heat to a refrigerant.
    (4) Single package unit means any central air conditioner in which 
all the major assemblies are enclosed in one cabinet.
    (5) Split system means any central air conditioner in which one or 
more of the major assemblies are separate from the others.
    (i) Heat pump means a product, other than a packaged terminal heat 
pump, which consists of one or more assemblies, powered by single phase 
electric current, rated below 65,000 Btu per hour, utilizing an indoor 
conditioning coil, compressor, and refrigerant-to-outdoor air heat 
exchanger to provide air heating, and may also provide air cooling, 
dehumidifying, humidifying, circulating, and air cleaning.
    (j) Fluorescent lamp ballast means a device that is used to start 
and operate fluorescent lamps by providing a starting voltage and 
current and limiting the current during normal operation, and that is 
designed to operate at nominal input voltages of 120 or 277 volts with a 
frequency of 60 Hertz and is for use in connection with F40T12, F96T12 
or F96T12HO lamps.
    (k) Fluorescent lamp: (1) Means a low pressure mercury electric-
discharge

[[Page 259]]

source in which a fluorescing coating transforms some of the ultra-
violet energy generated by the mercury discharge into light, including 
only the following:
    (i) Any straight-shaped lamp (commonly referred to as 4-foot medium 
bi-pin lamps) with medium bi-pin bases of nominal overall length of 48 
inches and rated wattage of 28 or more;
    (ii) Any U-shaped lamp (commonly referred to as 2-foot U-shaped 
lamps) with medium bi-pin bases of nominal overall length between 22 and 
25 inches and rated wattage of 28 or more;
    (iii) Any rapid start lamp (commonly referred to as 8-foot high 
output lamps) with recessed double contact bases of nominal overall 
length of 96 inches and 0.800 nominal amperes, as defined in ANSI C78.1-
1978 and related supplements (copies of ANSI C78.1-1978 and related 
supplements may be obtained from the American National Standards 
Institute, 11 West 42nd St., New York, NY 10036); and
    (iv) Any instant start lamp (commonly referred to as 8-foot slimline 
lamps) with single pin bases of nominal overall length of 96 inches and 
rated wattage of 52 or more, as defined in ANSI C78.3-1978 (R1984) and 
related supplement ANSI C78.3a-1985 (copies of ANSI C78.3-1978 (R1984) 
and related supplement ANSI C78.3a-1985 may be obtained from the 
American National Standards Institute, 11 West 42nd St., New York, NY 
10036); but
    (2) Fluorescent lamp does not mean any lamp excluded by the 
Department of Energy, by rule, as a result of a determination that 
standards for such lamp would not result in significant energy savings 
because such lamp is designed for special applications or has special 
characteristics not available in reasonably substitutable lamp types; 
and
    (3) General service fluorescent lamp means a fluorescent lamp which 
can be used to satisfy the majority of fluorescent applications, but 
does not mean any lamp designed and marketed for the following 
nongeneral lighting applications:
    (i) Fluorescent lamps designed to promote plant growth;
    (ii) Fluorescent lamps specifically designed for cold temperature 
installations;
    (iii) Colored fluorescent lamps;
    (iv) Impact-resistant fluorescent lamps;
    (v) Reflectorized or aperture lamps;
    (vi) Fluorescent lamps designed for use in reprographic equipment;
    (vii) Lamps primarily designed to produce radiation in the ultra-
violet region of the spectrum; and
    (viii) Lamps with a color rendering index of 82 or greater.
    (l) Medium base compact fluorescent lamp means an integrally 
ballasted fluorescent lamp with a medium screw base and a rated input 
voltage of 115 to 130 volts and which is designed as a direct 
replacement for a general service incandescent lamp.
    (m) Incandescent lamp: (1) Means a lamp in which light is produced 
by a filament heated to incandescence by an electric current, including 
only the following:
    (i) Any lamp (commonly referred to as lower wattage nonreflector 
general service lamps, including any tungsten-halogen lamp) that has a 
rated wattage between 30 and 199 watts, has an E26 medium screw base, 
has a rated voltage or voltage range that lies at least partially within 
115 and 130 volts, and is not a reflector lamp;
    (ii) Any lamp (commonly referred to as a reflector lamp) which is 
not colored or designed for rough or vibration service applications, 
that contains an inner reflective coating on the outer bulb to direct 
the light, an R, PAR, or similar bulb shapes (excluding ER or BR) with 
E26 medium screw bases, a rated voltage or voltage range that lies at 
least partially within 115 and 130 volts, a diameter which exceeds 2.75 
inches, and is either--
    (A) A low(er) wattage reflector lamp which has a rated wattage 
between 40 and 205 watts; or
    (B) A high(er) wattage reflector lamp which has a rated wattage 
above 205 watts;
    (iii) Any general service incandescent lamp (commonly referred to as 
a high- or higher-wattage lamp) that has a rated wattage above 199 watts 
(above 205 watts for a high wattage reflector lamp); but

[[Page 260]]

    (2) Incandescent lamp does not mean any lamp excluded by the 
Secretary of Energy, by rule, as a result of a determination that 
standards for such lamp would not result in significant energy savings 
because such lamp is designed for special applications or has special 
characteristics not available in reasonably substitutable lamp types; 
and
    (3) General service incandescent lamp means any incandescent lamp 
(other than a miniature or photographic lamp), including an incandescent 
reflector lamp, that has an E26 medium screw base, a rated voltage range 
at least partially within 115 and 130 volts, and which can be used to 
satisfy the majority of lighting applications, but does not include any 
lamp specifically designed for:
    (i) Traffic signal, or street lighting service;
    (ii) Airway, airport, aircraft, or other aviation service;
    (iii) Marine or marine signal service;
    (iv) Photo, projection, sound reproduction, or film viewer service;
    (v) Stage, studio, or television service;
    (vi) Mill, saw mill, or other industrial process service;
    (vii) Mine service;
    (viii) Headlight, locomotive, street railway, or other 
transportation service;
    (ix) Heating service;
    (x) Code beacon, marine signal, lighthouse, reprographic, or other 
communication service;
    (xi) Medical or dental service;
    (xii) Microscope, map, microfilm, or other specialized equipment 
service;
    (xiii) Swimming pool or other underwater service;
    (xiv) Decorative or showcase service;
    (xv) Producing colored light;
    (xvi) Shatter resistance which has an external protective coating; 
or
    (xvii) Appliance service; and
    (4) Incandescent reflector lamp means a lamp described in paragraph 
(m)(1)(ii) of this section; and
    (5) Tungsten-halogen lamp means a gas-filled tungsten filament 
incandescent lamp containing a certain proportion of halogens in an 
inert gas.
    (n) Showerhead means any showerhead (including a handheld 
showerhead), except a safety shower showerhead.
    (o) Faucet means a lavatory faucet, kitchen faucet, metering faucet, 
or replacement aerator for a lavatory or kitchen faucet.
    (p) Water closet means a plumbing fixture having a water-containing 
receptor which receives liquid and solid body waste and, upon actuation, 
conveys the waste through an exposed integral trap seal into a gravity 
drainage system, except such term does not include fixtures designed for 
installation in prisons.
    (q) Urinal means a plumbing fixture which receives only liquid body 
waste and, on demand, conveys the waste through a trap seal into a 
gravity drainage system, except such term does not include fixtures 
designed for installation in prisons.
    (r) Pool heater means an appliance designed for heating nonpotable 
water contained at atmospheric pressure, including heating water in 
swimming pools, spas, hot tubs and similar applications. The 
requirements of this part are limited to those pool heaters for which 
the Department of Energy has adopted and published test procedures for 
measuring energy usage (see 10 CFR part 430, subpart B, appendix P).

[52 FR 46894, Dec. 10, 1987, as amended at 59 FR 34031, 34032, July 1, 
1994; 59 FR 49563, Sept. 28, 1994; 59 FR 67525, Dec. 29, 1994]

                                 General



Sec.  305.4  Prohibited acts.

    (a) It shall be unlawful and subject to the enforcement penalties of 
section 333 of the Act, as adjusted for inflation pursuant to Sec.  1.98 
of this chapter, for each unit of any new covered product to which the 
part applies:
    (1) For any manufacturer or private labeler knowingly to distribute 
in commerce any new covered product unless such covered product is 
marked and/or labeled in accordance with Sec.  305.11 with a marking, 
label, flap tag, hang tag, or energy fact sheet which conforms to the 
provisions of the Act and this part.
    (2) For any manufacturer, distributor, retailer, or private labeler 
knowingly to remove or render illegible any marking or label required to 
be

[[Page 261]]

provided with such product by this part.
    (3) For any manufacturer or private labeler knowingly to distribute 
in commerce any new covered product, if there is not included (i) on the 
label, (ii) separately attached to the product, or (iii) shipped with 
the product, additional information relating to energy consumption or 
energy efficiency which conforms to the requirements in this part.
    (b) It shall be unlawful and subject to the enforcement penalties of 
section 333 of the Act, as adjusted for inflation pursuant to Sec.  1.98 
of this chapter, for any manufacturer or private labeler knowingly to:
    (1) Refuse a request by the Commission or its designated 
representative for access to, or copying of, records required to be 
supplied under this part.
    (2) Refuse to make reports or provide upon request by the Commission 
or its designated representative any information required to be supplied 
under this part.
    (3) Refuse upon request by the Commission or its designated 
representative to permit a representative designated by the Commission 
to observe any testing required by this part while such testing is being 
conducted or to inspect the results of such testing. This section shall 
not limit the Commission from requiring additional testing under this 
part.
    (4) Refuse, when requested by the Commission or its designated 
representative, to supply at the manufacturer's expense, no more than 
two of each model of each covered product to any laboratory designated 
by the Commission for the purpose of ascertaining whether the 
information in catalogs or set out on the label or marked on the product 
as required by this part is accurate. This action will be taken only 
after review of a manufacturer's testing records and an opportunity to 
revalidate test data has been extended to the manufacturer.
    (5) Distribute in commerce any catalog containing a listing for a 
covered product without the information required by Sec.  305.14 of this 
part. This subsection shall also apply to distributors and retailers.
    (c) Pursuant to section 333(c) of the Act, it shall be an unfair or 
deceptive act or practice in violation of section 5(a)(1) of the Federal 
Trade Commission Act (15 U.S.C. 45(a)(1)) for any manufacturer, 
distributor, retailer or private labeler in or affecting commerce to 
display or distribute at point of sale any printed material applicable 
to a covered product under this rule if such printed material does not 
contain the information required by Sec.  305.13. This requirement does 
not apply to any broadcast advertisement or to any advertisement in a 
newspaper, magazine, or other periodical.
    (d)(1) It shall be an unfair or deceptive act or practice in 
violation of section 5(a)(1) of the Federal Trade Commission Act, 15 
U.S.C. 45(a)(1), for any manufacturer, distributor, retailer or private 
labeler to make any representation in or affecting commerce, in writing 
(including a representation on a label) or in any broadcast 
advertisement, with respect to the energy use or efficiency or, in the 
case of showerheads, faucets, water closets, and urinals, water use of a 
covered product to which a test procedure is applicable under section 
323 of the Act, 42 U.S.C. 6293, or the cost of energy consumed by such 
product, unless such product has been tested in accordance with such 
test procedure and such representation fairly discloses the results of 
such testing.
    (2) Effective 180 days after an amended or new test procedure 
applicable to a covered product is prescribed or established under 
section 323(b) of the Act, 42 U.S.C. 6293(b), it shall be an unfair or 
deceptive act or practice in violation of section 5(a)(1) of the Federal 
Trade Commission Act, 15 U.S.C. 45(a)(1), for any manufacturer, 
distributor, retailer or private labeler to make any representation in 
or affecting commerce, in writing (including a representation on a 
label) or in any broadcast advertisement, with respect to the energy use 
or efficiency or, in the case of showerheads, faucets, water closets and 
urinals, water use of such product, or cost of energy consumed by such 
product, unless the product has been tested in accordance with such 
amended or new test procedures and such representation fairly discloses 
the

[[Page 262]]

results of such testing. This requirement is not limited to consumer 
appliance products covered by the labeling requirements of this part.
    (3) Any manufacturer, distributor, retailer, or private labeler may 
file a petition with the Commission not later than sixty (60) days 
before the expiration of the period involved for an extension of the 180 
day period. If the Commission finds that the requirements would impose 
an undue hardship on the petitioner, the Commission may extend the 180 
day period with respect to the petitioner up to an additional 180 days.
    (e) This part shall not apply to:
    (1) Any covered product if it is manufactured, imported, sold, or 
held for sale for export from the United States, so long as such product 
is not in fact distributed in commerce for use in the United States, and 
such covered product or the container thereof bears a stamp or label 
stating that such covered product is intended for export.
    (2) Any covered product, other than central air conditioners, pulse 
combustion and condensing furnaces, fluorescent lamp ballasts, 
showerheads, faucets, water closets, urinals, pool heaters, 
instantaneous water heaters, heat pump water heaters, general service 
fluorescent lamps, medium base compact fluorescent lamps, and general 
service incandescent lamps (including incandescent reflector lamps), if 
the manufacture of the product was completed prior to May 19, 1980. Any 
central air conditioner or any pulse combustion or condensing furnace if 
its manufacture was completed prior to June 7, 1988. Any fluorescent 
lamp ballast if its manufacture was completed prior to January 1, 1990. 
Any showerhead, faucet, water closet or urinal if its manufacture was 
completed prior to October 24, 1994. Any pool heater, instantaneous 
water heater, or heat pump water heater if its manufacture was completed 
prior to December 29, 1994. Any general service fluorescent lamp, medium 
base compact fluorescent lamp, or general service incandescent lamp 
(including any incandescent reflector lamp), if its manufacture was 
completed prior to May 15, 1995.
    (3) Any catalog or point-of-sale printed material pertaining to any 
covered products that were manufactured prior to May 19, 1980; any 
catalog or point-of-sale printed material pertaining to any central air 
conditioners or pulse combustion or condensing furnaces manufactured 
prior to June 7, 1988; any catalog or point-of-sale printed material 
pertaining to any fluorescent lamp ballasts manufactured prior to June 
23, 1989; any catalog or point-of-sale printed material pertaining to 
any showerheads, faucets, water closets or urinals manufactured prior to 
October 24, 1994; any catalog or point-of-sale printed material 
pertaining to any pool heaters, instantaneous water heaters, or heat 
pump water heaters manufactured prior to December 29, 1994; or any 
catalog or point-of-sale printed material pertaining to general service 
fluorescent lamps, medium base compact fluorescent lamps, or general 
service incandescent lamps (including incandescent reflector lamps), 
that were manufactured prior to May 15, 1995; except that any 
representations respecting the energy consumption, energy efficiency, or 
water use of any covered product or other consumer appliance product, or 
respecting the cost of energy consumed or water used by such product, 
are subject to the requirements of paragraph (d) of this section.
    (f) As used in paragraphs (a) and (b) of this section, the term 
knowingly means:
    (1) The having of actual knowledge, or
    (2) The presumed having of knowledge deemed to be possessed by a 
reasonable person who acts in the circumstances, including knowledge 
obtainable upon the exercise of due care.

[52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989; 58 
FR 54964, Oct. 25, 1993; 59 FR 49563, Sept. 28, 1994; 59 FR 67526, Dec. 
29, 1994; 61 FR 54549, Oct. 21, 1996]

                                 Testing



Sec.  305.5  Determinations of estimated annual energy consumption, 

estimated annual operating cost, and energy efficiency rating, and of 
water use rate.

    (a) Procedures for determining the estimated annual energy 
consumption, the estimated annual operating costs, the energy efficiency 
ratings and the efficacy factors of covered products are

[[Page 263]]

those found in 10 CFR part 430, subpart B, in the following sections:
    (1) Refrigerators and refrigerator-freezers Sec.  430.23(a).
    (2) Freezers--Sec.  430.23(b).
    (3) Dishwashers--Sec.  430.23(c).
    (4) Water heaters--Sec.  430.23(e).
    (5) Room air conditioners--Sec.  430.23(f).
    (6) Clothes washers--Sec.  430.23(j).
    (7) Central air conditioners and heat pumps--Sec.  430.23(m).
    (8) Furnaces--Sec.  430.23(n).
    (9) Pool Heaters--Sec.  430.23(p)
    (10) Fluorescent lamp ballasts--Sec.  430.23(q).
    (b) Manufacturers and private labelers of any covered product that 
is a general service fluorescent lamp, medium base compact fluorescent 
lamp, or general service incandescent lamp (including an incandescent 
reflector lamp), must, for any representation of the design voltage, 
wattage, light output or life of such lamp or for any representation 
made by the encircled ``E'' that such a lamp is in compliance with an 
applicable standard established by section 325 of the Act, possess and 
rely upon a reasonable basis consisting of competent and reliable 
scientific tests substantiating the representation. For representations 
of the light output and life ratings of any covered product that is a 
medium base compact fluorescent lamp or incandescent lamp (including an 
incandescent reflector lamp), the Commission will accept as a reasonable 
basis competent and reliable scientific tests conducted according to the 
following applicable IES test protocols that substantiate the 
representations:

For measuring light output (in lumens):
  General Service Fluorescent..............  IES LM 9
  Compact Fluorescent......................  IES LM 66
  General Service Incandescent
    (Other than Reflector Lamps)...........  IES LM 45
  General Service Incandescent
    (Reflector Lamps)......................  IES LM 20
For measuring laboratory life (in hours):
  General Service Fluorescent..............  IES LM 40
  Compact Fluorescent......................  IES LM 65
  General Service Incandescent
    (Other than Reflector Lamps)...........  IES LM 49
  General Service Incandescent
    (Reflector Lamps)......................  IES LM 49
 

    (c) Procedures for determining the water use rates of covered 
products are those found in the following standards:
    (1) Showerheads and faucets--- ASME A112.18.1M-1989, Plumbing 
Fixture Fittings. This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. Copies of ASME A112.18.1M may be obtained from the 
American Society of Mechanical Engineers, 345 East 47th Street, New 
York, NY 10017, or may be inspected at the Federal Trade Commission, 
room 130, 600 Pennsylvania Avenue, N.W., Washington, DC, or at the 
Office of the Federal Register, suite 700, 800 North Capitol Street, 
N.W., Washington, DC.
    (2) Water closets and urinals--ASME A112.19.2M-1990, Vitreous China 
Plumbing Fixtures. This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. Copies of ASME A112.19.2M may be obtained from the 
American Society of Mechanical Engineers, 345 East 47th Street, New 
York, NY 10017, or may be inspected at the Federal Trade Commission, 
room 130, 600 Pennsylvania Avenue, N.W., Washington, DC, or at the 
Office of the Federal Register, suite 700, 800 North Capitol Street, 
N.W., Washington, DC.

[58 FR 54964, Oct. 25, 1993, as amended at 59 FR 34033, July 1, 1994; 59 
FR 49564, Sept. 28, 1994; 59 FR 67527, Dec. 29, 1994; 66 FR 27858, May 
21, 2001]



Sec.  305.6  Sampling.

    (a) For any covered product (except general service flouroscent 
lamps, medium base compact florescent lamps, and general service 
incandescent lamps, including incandescent reflector lamps), any 
representation with respect to or based upon a measure or measures of 
energy consumption incorporated into Sec.  305.5 shall be based upon the 
sampling procedures set forth in Sec.  430.24 of 10 CFR part 430, 
subpart B.
    (b) For any covered product that is a medium base compact 
fluorescent lamp or a general service incandescent lamp (including an 
incandescent reflector lamp), any representation of design voltage, 
wattage, light output or life and, for any covered product that is a

[[Page 264]]

general service fluorescent lamp or incandescent reflector lamp, any 
representation made by the encircled ``E'' that such lamp is in 
compliance with an applicable standard established by section 325 of the 
Act shall be based upon tests using a competent and reliable scientific 
sampling procedure. The Commission will accept ``Military Standard 105--
Sampling Procedures and Tables for Inspection by Attributes'' as such a 
sampling procedure.

[59 FR 67527, Dec. 29, 1994, as amended at 66 FR 27858, May 21, 2001]



Sec.  305.7  Determinations of capacity.

    The capacity of covered products shall be determined as follows:
    (a) Refrigerators and refrigerator-freezers. The capacity shall be 
the total refrigerated volume (VT) in cubic feet, rounded to the nearest 
one-tenth of a cubic foot, as determined according to appendix A1 to 10 
CFR part 430, subpart B.
    (b) Freezers. The capacity shall be the total refrigerated volume 
(VT) in cubic feet, rounded to the nearest one-tenth of a cubic foot, as 
determined according to appendix B1 to 10 CFR part 430, subpart B.
    (c) Dishwashers. The capacity shall be the place-setting capacity, 
determined according to appendix C to 10 CFR part 430, subpart B.
    (d) Water heaters. The capacity shall be the first hour rating, as 
determined according to appendix E to 10 CFR part 430, subpart B.
    (e) Pool heaters. The capacity shall be the heating capacity in 
Btu's per hour, rounded to the nearest 1,000 Btu's per hour, as 
determined according to appendix P to 10 CFR part 430, subpart B.
    (f) Room air conditioners. The capacity shall be the cooling 
capacity in Btu's per hour, as determined according to appendix F to 10 
CFR part 430, subpart B, but rounded to the nearest value ending in 
hundreds that will satisfy the relationship that the value of EER used 
in representations equals the rounded value of capacity divided by the 
value of input power in watts. If a value ending in hundreds will not 
satisfy this relationship, the capacity may be rounded to the nearest 
value ending in 50 that will.
    (g) Clothes washers. The capacity shall be the tub capacity, rounded 
to the nearest gallon, as determined according to appendix J to 10 CFR 
part 430, subpart B, in the terms ``standard'' or ``compact'' as defined 
in appendix J.
    (h) Furnaces. The capacity shall be the heating capacity in Btu's 
per hour, rounded to the nearest 1,000 Btu's per hour, as determined 
according to appendix N to 10 CFR part 430, subpart B.
    (i) Central air conditioners, cooling. The capacity shall be the 
cooling capacity in Btu's per hour, as determined according to appendix 
M to 10 CFR part 430, subpart B, rounded to the nearest 100 Btu's per 
hour for capacities less than 20,000 Btu's per hour; to the nearest 200 
Btu's per hour for capacities between 20,000 and 37,999 Btu's per hour; 
and to the nearest 500 Btu's per hour for capacities between 38,000 and 
64,999 Btu's per hour.
    (j) Central air conditioners, heating. The capacity shall be the 
heating capacity in Btu's per hour, as determined according to appendix 
M to 10 CFR part 430, subpart B, rounded to the nearest 100 Btu's per 
hour for capacities less than 20,000 Btu's per hour; to the nearest 200 
Btu's per hour for capacities between 20,000 and 37,999 Btu's per hour; 
and to the nearest 500 Btu's per hour for capacities between 38,000 and 
64,999 Btu's per hour.
    (k) Fluorescent lamp ballasts. The capacity shall be the ballast 
input voltage, as determined according to appendix Q to 10 CFR part 430, 
subpart B.

[59 FR 34033, July 1, 1994, as amended at 59 FR 49564, Sept. 28, 1994]



Sec.  305.8  Submission of data.

    (a)(1) Each manufacturer of a covered product (except manufacturers 
of fluorescent lamp ballasts, showerheads, faucets, water closets, 
urinals, general service fluorescent lamps, medium base compact 
fluorescent lamps, or general service incandescent lamps including 
incandescent reflector lamps) shall submit annually to the Commission a 
report listing the estimated annual energy consumption (for 
refrigerators, refrigerator-freezers, freezers, clothes washers, 
dishwashers and water heaters) or the energy efficiency rating (for room 
air conditioners, central air conditioners, heat pumps, furnaces, and

[[Page 265]]

pool heaters) for each basic model in current production, determined 
according to Sec.  305.5 and statistically verified according to Sec.  
305.6. The report must also list, for each basic model in current 
production: the model numbers for each basic model; the total energy 
consumption, determined in accordance with Sec.  305.5, used to 
calculate the estimated annual energy consumption or energy efficiency 
rating; the number of tests performed; and, its capacity, determined in 
accordance with Sec.  305.7. For those models that use more than one 
energy source or more than one cycle, each separate amount of energy 
consumption or energy cost, measured in accordance with Sec.  305.5, 
shall be listed in the report. appendix K illustrates a suggested 
reporting format. Starting serial numbers or other numbers identifying 
the date of manufacture of covered products shall be submitted whenever 
a new basic model is introduced on the market.
    (2) Each manufacturer of a covered fluorescent lamp ballast shall 
submit annually to the Commission a report for each basic model of 
fluorescent lamp ballast in current production. The report shall contain 
the following information:
    (i) Name and address of manufacturer;
    (ii) All trade names under which the fluorescent lamp ballast is 
marketed;
    (iii) Model number;
    (iv) Starting serial number, date code or other means of identifying 
the date of manufacture (date of manufacture information must be 
included with only the first submission for each basic model);
    (v) Nominal input voltage and frequency;
    (vi) Ballast efficacy factor; and
    (vii) Type (F40T12, F96T12 or F96T12HO) and number of lamp or lamps 
with which the fluorescent lamp ballast is designed to be used.
    (3) Each manufacturer of a covered product that is a general service 
fluorescent lamp, medium base compact fluorescent lamp, or general 
service incandescent lamp (including an incandescent reflector lamp), 
shall submit annually to the Commission a report for each lamp type in 
current production. The report shall contain the following information:
    (i) Name and address of manufacturer;
    (ii) All trade names under which the lamp is marketed;
    (iii) Model number;
    (iv) Starting serial number, date code or other means of identifying 
the date of manufacture (date of manufacture information must be 
included with only the first submission for each lamp type); and
    (v) For all covered lamps, the test results for the lamp's wattage 
and light output ratings and, in addition, for all covered fluorescent 
lamps, the test results for the lamp's color rendering index.
    (4) Each manufacturer of a covered showerhead, faucet, water closet 
or urinal shall submit annually to the Commission a report for each 
basic model of such products in current production. The report shall 
contain the following information:
    (i) Name and address of manufacturer;
    (ii) All trade names under which the product is marketed;
    (iii) Model number;
    (iv) Starting serial number, date code or other means of identifying 
the date of manufacture (date of manufacture information must be 
included with only the first submission for each basic model);
    (v) The product's water use, expressed in gallons and liters per 
flush (gpf and Lpf) or gallons and liters per minute (gpm and L/min) or 
per cycle (gpc and L/cycle) as determined in accordance with Sec.  
305.5.
    (b)(1) All data required by Sec.  305.8(a) except serial numbers 
shall be submitted to the Commission annually, on or before the 
following dates:

------------------------------------------------------------------------
                                                  Deadline for data
              Product category                        submission
------------------------------------------------------------------------
Refrigerators..............................  Aug. 1
Refrigerator-freezers......................  Aug. 1
Freezers...................................  Aug. 1
Central air conditioners...................  July 1
Heat pumps.................................  July 1
Dishwashers................................  June 1
Water heaters..............................  May 1
Room air conditioners......................  May 1
Furnaces...................................  May 1
Pool heaters...............................  May 1
Clothes washers............................  Oct. 1

[[Page 266]]

 
Fluorescent lamp ballasts..................  Mar. 1
Showerheads................................  Mar. 1
Faucets....................................  Mar. 1
Water closets..............................  Mar. 1
Urinals....................................  Mar. 1
Fluorescent lamps..........................  Mar. 1 [Stayed]
Medium Base Compact Fluorescent Lamps......  Mar. 1 [Stayed]
Incandescent Lamps, incl. Reflector Lamps..  Mar. 1 [Stayed]
------------------------------------------------------------------------

    (2) All revisions to such data (both additions to and deletions from 
the preceding data) shall be submitted to the Commission as part of the 
next annual report period.
    (c) All information required by paragraph (a) of this section must 
be submitted for new models prior to any distribution of such model. 
Models subject to design or retrofit alterations which change the data 
contained in any annual report shall be reported in the manner required 
for new models. Models which are discontinued shall be reported in the 
next annual report.

[52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989; 59 
FR 54965, Oct. 25, 1993; 59 FR 49564, Sept. 28, 1994; 59 FR 67527, Dec. 
29, 1994; 60 FR 14210, Mar. 16, 1995; 67 FR 35008, May 17, 2002; 68 FR 
8449, Feb. 21, 2003]



Sec.  305.9  Representative average unit energy cost.

    (a) Table 1, below, contains the representative unit energy costs to 
be utilized for all requirements of this part.

         Table 1--Representative Average Unit Cost of Energy for Five Residential Energy Sources (2003)
----------------------------------------------------------------------------------------------------------------
                                                                                                     Dollars per
              Type of energy                  In commonly used terms      As required by DOE test    million Btu
                                                                                 procedure               \1\
----------------------------------------------------------------------------------------------------------------
Electricity..............................  8.41[cent]/kWh \2\ \3\.....  $0.0841/kWh................       $24.65
Natural Gas..............................  81.6[cent]/therm \4\ or      $0.00000816/Btu............        $8.16
                                            $8.37/MCF \5-\\6\.
No. 2 heating oil........................  $1.22/gallon \7\...........  $0.00000880/Btu............        $8.80
Propane..................................  $1.21/gallon \8\...........  $0.00001325/Btu............       $13.25
Kerosene.................................  $1.43/gallon \9\...........  $0.00001059/Btu............      $10.59
----------------------------------------------------------------------------------------------------------------
\1\ Btu stands for British thermal unit.
\2\ kWh stands for kiloWatt hour.
\3\ 1 kWh=3,412 Btu.
\4\ 1 therm=100,000 Btu. Natural gas prices include taxes.
\5\ MCF stands for 1,000 cubic feet.
\6\ For the purposes of this table, 1 cubic foot of natural gas has an energy equivalence of 1,027 Btu.
\7\ For the purposes of this table, 1 gallon of No. 2 heating oil has an energy equivalence of 138,690 Btu.
\8\ For the purposes of this table, 1 gallon of liquid propane has an energy equivalence of 91,333 Btu.
\9\ For the purposes of this table, 1 gallon of kerosene has an energy equivalence of 135,000 Btu.

    (b) Table 1, above, will be revised on the basis of future 
information provided by the Secretary of the Department of Energy, but 
not more often than annually.

[52 FR 46894, Dec. 10, 1987, as amended at 59 FR 5700, Feb. 8, 1994; 59 
FR 34033, July 1, 1994; 60 FR 9296, Feb. 17, 1995; 61 FR 5680, Feb. 14, 
1996; 62 FR 67562, Dec. 29, 1997; 64 FR 7784, Feb. 17, 1999; 65 FR 
20354, Apr. 17, 2000; 66 FR 27858, May 21, 2001; 67 FR 39271, June 7, 
2002; 68 FR 23586, May 5, 2003]



Sec.  305.10  Ranges of estimated annual energy consumption and energy efficiency ratings.

    (a) The range of estimated annual energy consumption or energy 
efficiency ratings for each covered product (except fluorescent lamp 
ballasts, showerheads, faucets, water closets or urinals) shall be taken 
from the appropriate appendix to this rule in effect at the time the 
labels are affixed to the product. The Commission shall publish revised 
ranges annually in the Federal Register, if appropriate, or a statement 
that the specific prior ranges are still applicable for the new year. 
Ranges will be changed if the estimated annual energy consumption or 
energy efficiency ratings of the products within the range change in a 
way that would alter the upper or lower estimated annual energy 
consumption or energy efficiency rating limits of the range by 15% or 
more from that previously published. When a range is revised, all 
information disseminated after 90 days following the publication of the 
revision shall conform to the revised range. Products that have been 
labeled prior to the effective date of a

[[Page 267]]

modification under this section need not be relabeled.
    (b) When the estimated annual energy consumption or energy 
efficiency rating of a given model of a covered product falls outside 
the limits of the current range for that product, which could result 
from the introduction of a new or changed model, the manufacturer shall
    (1) Omit placement of such product on the scale, and
    (2) Add one of the two sentences below, as appropriate, in the space 
just below the scale, as follows:

    The estimated annual energy consumption of this model was not 
available at the time the range was published.

    The energy efficiency rating of this model was not available at the 
time the range was published.

[59 FR 34033, July 1, 1994, as amended at 67 FR 35008, May 17, 2002; 68 
FR 8449, Feb. 21, 2003]

                          Required Disclosures



Sec.  305.11  Labeling for covered products.

    (a) Labels for covered products other than fluorescent lamp 
ballasts, general service fluorescent lamps, medium base compact 
fluorescent lamps, general service incandescent lamps (including 
incandescent reflector lamps), showerheads, faucets, water closets and 
urinals--(1) Layout. All energy labels for each category of covered 
product shall use one size, similar colors and typefaces with consistent 
positioning of headline, copy and charts to maintain uniformity for 
immediate consumer recognition and readability. Trim size dimensions for 
all labels shall be as follows: width must be between 5\1/4\ inches and 
5\1/2\ inches (13.34 cm. and 13.97 cm.); length must be 7\3/8\ inches 
(18.73 cm.). Copy is to be set between 27 picas and 29 picas and copy 
page should be centered (right to left and top to bottom). Depth is 
variable but should follow closely the prototype labels appearing at the 
end of this part illustrating the basis layout. All positioning, 
spacing, type sizes and line widths should be similar to and consistent 
with the prototype labels.
    (2) Type style and setting. The Helvetica Condensed series typeface 
or equivalent shall be used exclusively on the label. Specific sizes and 
faces to be used are indicated on the prototype labels. No hyphenation 
should be used in setting headline or copy text. Positioning and spacing 
should follow the prototypes closely. Generally, text must be set flush 
left with two points leading except where otherwise indicated. Helvetica 
Condensed Regular shall be used for all copy except the large number 
indicating the estimated annual energy consumption or energy efficiency 
rating, which shall be in Helvetica Condensed Black, and all other 
numerals and letters used in immediate connection with the Energy 
Efficiency Scale, which shall be in Helvetica Condensed Bold. See the 
prototype labels for specific directions.
    (3) Colors. The basic colors of all labels shall be process yellow 
or equivalent and process black. The label shall be printed full bleed 
process yellow. All type and graphics shall be print process black.
    (4) Paper stock--(i) Adhesive labels. All adhesive labels should be 
applied so they can be easily removed without the use of tools or 
liquids, other than water, but should be applied with an adhesive with 
an adhesion capacity sufficient to prevent their dislodgment during 
normal handling throughout the chain of distribution to the retailer or 
consumer. The paper stock for pressure-sensitive or other adhesive 
labels shall have a basic weight of not less than 58 pounds per 500 
sheets (25x38) or equivalent, exclusive of the 
release liner and adhesive. A minimum peel adhesion capacity for the 
adhesive of 12 ounces per square inch is suggested, but not required if 
the adhesive can otherwise meet the above standard. The pressure-
sensitive adhesive shall be applied in no fewer than two strips not less 
than 0.5 inches (1.27 cm.) wide. The strips shall be within 0.25 inches 
(.64 cm.) of the opposite edges of the label. For a ``flap-tag'' label, 
the pressure-sensitive adhesive shall be applied in one strip not less 
that 0.5 inches (1.27 cm.) wide. The strip shall be within 0.25 inches 
(.64 cm.) of the top edge of the label.
    (ii) Hang tags. The paper stock for hang tags shall have a basic 
weight of not less than 110 pounds per 500 sheets (25\1/
2\x30\1/2\ index). When materials are

[[Page 268]]

used to attach the hang tags to appliance products, the materials shall 
be of sufficient strength to insure that if gradual pressure is applied 
to the hang tag by pulling it away from where it is affixed to the 
product, the hang tag will tear before the material used to affix the 
hang tag to the product breaks.
    (5) Contents--(i) Labels for refrigerators, refrigerator-freezers, 
freezers, dish washers, clothes washers, water heaters and room air 
conditioners. (A) Headlines and texts, as illustrated in the Prototype 
Labels in Appendix L to this Part, are standard for all labels except 
clothes washer labels, which must have the text and features described 
in 305.11(a)(5)(i)(L) of this part.
    (B) Name of manufacturer or private labeler shall, in the case of a 
corporation, be deemed to be satisfied only by the actual corporate 
name, which may be preceded or followed by the name of the particular 
division of the corporation. In the case of an individual, partnership, 
or association, the name under which the business is conducted shall be 
used. Inclusion of the name of the manufacturer or private labeler is 
optional at the discretion of the manufacturer or private labeler.
    (C) Model number(s) will be the designation given by the 
manufacturer or private labeler.
    (D) Capacity or size is that determined in accordance with Sec.  
305.7.
    (E) Estimated annual energy consumption for refrigerators, 
refrigerator-freezers, freezers, clothes washers, dishwashers and water 
heaters and energy efficiency ratings for room air conditioners are as 
determined in accordance with Sec.  305.5.
    (F) Ranges of comparability and of estimated annual energy 
consumption and energy efficiency ratings, as applicable, are found in 
the appropriate appendices accompanying this part.
    (G) Placement of the labeled product on the scale shall be 
proportionate to the lowest and highest estimated annual energy 
consumption or energy efficiency ratings forming the scale.
    (H) Labels must contain a statement disclosing the product's 
estimated annual operating cost derived using the DOE National Average 
Representative Unit Cost for the appropriate fuel that was current when 
the label was printed. The statement must disclose the specific cost per 
unit for the fuel and the year DOE published it.
    (1) For refrigerators, refrigerator-freezers, freezers, and water 
heaters, the statement will read as follows (fill in the blanks with the 
appropriate appliance name, the operating cost, the year, and the energy 
cost figures):

[Refrigerators, or Freezers, or Water Heaters] using more energy cost 
more to operate.

This model's estimated yearly operating cost is: [Cost figure will be 
boxed] Based on a [Year] U.S. Government national average cost of $---- 
per [kWh, therm, or gallon] for [electricity, natural gas, propane, or 
oil]. Your actual operating cost will vary depending on your local 
utility rates and your use of the product.

    (2) For clothes washers and dishwashers, the statement will read as 
follows (fill in the blanks with the appropriate appliance name, the 
operating cost, the number of loads per week, the year, and the energy 
cost figures):

[Clothes Washers, or Dishwashers] using more energy cost more to 
operate. This model's estimated yearly operating cost is: [Electric cost 
figure will be boxed] when used with an electric water heater [Gas cost 
figure will be boxed] when used with a natural gas water heater.

Based on [5 washloads a week for dishwashers, or 8 washloads a week for 
clothes washers], and a [Year] U.S. Government national average cost of 
$---- per KWh for electricity and $---- per therm for natural gas. Your 
actual operating cost will vary depending on your local utility rates 
and your use of the product.

    (3) For room air conditioners, the statement will read as follows 
(fill in the blanks with the appropriate operating cost, the year, and 
the energy cost figures):

More efficient air conditioners cost less to operate.

This model's estimated yearly operating cost is: [Cost figure will be 
boxed] Based on a [Year] U.S. Government national average cost of $---- 
per kWh for electricity. Your actual operating cost will vary depending 
on your local utility rates and your use of the product.

    (I) The following statement shall appear at the bottom of the label:


[[Page 269]]


Important: Removal of this label before consumer purchase violates the 
Federal Trade Commission's Appliance Labeling Rule (16 CFR Part 305).

    (J) A statement that the estimated annual energy consumption and 
energy efficiency ratings, as applicable, are based on U.S. Government 
standard tests is required on all labels, as indicated in the prototype 
labels.
    (K) No marks or information other than that specified in this part 
shall appear on or directly adjoining this label, except a part or 
publication number identification may be included on this label, as 
desired by the manufacturer, and the energy use disclosure labels 
required by the governments of Canada or Mexico may appear directly 
adjoining this label, as desired by the manufacturer. If a manufacturer 
elects to use a part or publication number, it must appear in the lower 
right-hand corner of the label and be set in 6-point type or smaller.
    (L) Clothes washer labels must have the headlines and texts as 
illustrated in Prototype Label 2 of Appendix L of this Part. In 
particular, clothes washer labels must have the following headline as 
illustrated in Prototype Label 2: ``Compare the energy use of this 
clothes washer only with other models tested using the 2004 test 
procedure.'' In addition to the requirements for other labels, clothes 
washer labels must have a 10/16 inch (1.59 cm.) in height, process black 
bar across the top that contains the following text in process yellow as 
illustrated in Prototype Label 2: ``This model has been tested using the 
2004 test procedure. Compare only with models displaying this 
statement.''
    (ii) Labels for furnaces and pool heaters. (A) The headline, as 
illustrated in Figure 3, is standard for all labels.
    (B) Name of manufacturer or private labeler shall, in the case of a 
corporation, be deemed to be satisfied only by the actual corporate 
name, which may be preceded or followed by the name of the particular 
division of the corporation. In the case of an individual, partnership, 
or association, the name under which the business is conducted shall be 
used. Inclusion of the name of the manufacturer or private labeler is 
optional at the discretion of the manufacturer or private labeler.
    (C) The annual fuel utilization efficiency for furnaces and the 
thermal efficiency for pool heaters are determined in accordance with 
Sec.  305.5.
    (D) Each furnace and pool heater label shall contain a generic range 
consisting of the lowest and highest annual fuel utilization 
efficiencies (for furnaces) or thermal efficiencies (for pool heaters) 
for all furnaces or pool heaters that utilize the same energy source.
    (E) Placement of the labeled product on the scale shall be 
proportionate to the lowest and highest annual fuel utilization 
efficiency ratings or thermal efficiency ratings forming the scale.
    (F) The following statement shall appear on furnace labels beneath 
the range(s) in bold print:

Federal law requires the seller or installer of this appliance to make 
available a fact sheet or directory giving further information regarding 
the efficiency and operating cost of this equipment. Ask for this 
information.

    (G) A statement that the annual fuel utilization efficiency ratings 
or thermal efficiency ratings are based on U.S. Government standard 
tests is required on all labels.
    (H) The following statement shall appear at the bottom of the label:

Important: Removal of this label before consumer purchase violates the 
Federal Trade Commission's Appliance Labeling Rule (16 CFR Part 305).

    (I) No marks or information other than that specified in this part 
shall appear on or directly adjoining this label, except a part or 
publication number identification may be included on this label, as 
desired by the manufacturer, and the energy use disclosure labels 
required by the governments of Canada or Mexico may appear directly 
adjoining this label, as desired by the manufacturer. If a manufacturer 
elects to use a part or publication number, it must appear in the lower 
right-hand corner of the label and be set in 6-point type or smaller.
    (J) Manufacturers of boilers that are shipped without jackets must 
label their products with hang-tags that also have adhesive backing on 
them that

[[Page 270]]

complies with the specifications contained in Sec.  305.11(a)(4).
    (K) Manufacturers of boilers shipped with more than one input nozzle 
to be installed in the field must label such boilers with the AFUE of 
the system when it is set up with the nozzle that results in the lowest 
annual fuel utilization efficiency rating.
    (L) Manufacturers that ship out boilers that may be set up as either 
steam or hot water units must label the boilers with the AFUE rating 
derived by conducting the required test on the boiler as a hot water 
unit.
    (iii) Labels for central air conditioners. (A) The headline, as 
illustrated in Figures 4, 5 and 6, is standard for all labels.
    (B) Name of manufacturer or private labeler shall, in the case of a 
corporation, be deemed to be satisfied only by the actual corporate 
name, which may be preceded or followed by the name of the particular 
division of the corporation. In the case of an individual, partnership, 
or association, the name under which the business is conducted shall be 
used. Inclusion of the name of the manufacturer or private labeler is 
optional at the discretion of the manufacturer or private labeler.
    (C) The seasonal energy efficiency ratio for the cooling function of 
central air conditioners is determined in accordance with Sec.  305.5. 
For the heating function, the heating seasonal performance factor shall 
be calculated for heating Region IV for the standardized design heating 
requirement nearest the capacity measured in the High Temperature Test 
in accordance with Sec.  305.5. In addition, the energy efficiency 
rating(s) for split system condenser-evaporator coil combinations shall 
be either:
    (1) The energy efficiency rating of the condenser-evaporator coil 
combination that is the particular manufacturer's most commonly sold 
combination for that condenser model; or
    (2) The energy efficiency rating of the actual condenser-evaporator 
coil combination comprising the system to which the label is to be 
attached.
    (D)(1) Each cooling only central air conditioner label shall contain 
a generic range consisting of the lowest and highest seasonal energy 
efficiency ratios for all cooling only central air conditioners.
    (2) Each heat pump label, except as noted in paragraph 
(a)(5)(iii)(D)(3) of this section, shall contain two generic ranges. The 
first range shall consist of the lowest and highest seasonal energy 
efficiency ratios for the cooling side of all heat pumps. The second 
range shall consist of the lowest and highest heating seasonal 
performance factors for the heating side of all heat pumps.
    (3) Each heating only heat pump label shall contain a generic range 
consisting of the lowest and highest heating seasonal performance 
factors for all heating only heat pumps.
    (E) Placement of the labeled product on the scale shall be 
proportionate to the lowest and highest efficiency ratings forming the 
scale.
    (F) The following statement shall appear on the label beneath the 
range(s) in bold print:

Federal law requires the seller or installer of this appliance to make 
available a fact sheet or directory giving further information regarding 
the efficiency and operating cost of this equipment. Ask for this 
information.

    (G) A statement that the efficiency ratings are based on U.S. 
Government standard tests is required on all labels.
    In addition, all labels disclosing energy efficiency ratings for the 
``most common'' condenser-evaporator coil combinations must contain one 
of the following three statements:
    (1) For labels disclosing the seasonal energy efficiency ratio for 
cooling, the statement should read:

This energy rating is based on U.S. Government standard tests of this 
condenser model combined with the most common coil. The rating may vary 
slightly with different coils.

    (2) For labels disclosing both the seasonal energy efficiency ratio 
for cooling and the heating seasonal performance factor for heating, the 
statement should read:

This energy rating is based on U.S. Government standard tests of this 
condenser model combined with the most common coil. The rating will vary 
slightly with different coils and in different geographic regions.

    (3) For labels disclosing the heating seasonal performance factor 
for heating, the statement should read:


[[Page 271]]


This energy rating is based on U.S. Government standard tests of this 
condenser model combined with the most common coil. The rating will vary 
slightly with different coils and in different geographic regions.


Central air conditioner labels disclosing the efficiency ratings for 
specific condenser/coil combinations do not have to contain any of the 
above three statements. They must contain only the general disclosure 
that the energy costs and efficiency ratings are based on U.S. 
Government tests.
    (H) The following statement shall appear at the bottom of the label:

Important: Removal of this label before consumer purchase violates the 
Federal Trade Commission's Appliance Labeling Rule (16 CFR Part 305).

    (6) Placement. Manufacturers shall affix a label to the exterior 
surface on covered products in such a position that it can easily be 
read while standing in front of the product as it is displayed for sale. 
The label should be generally located on the upper-right-front corner of 
the product, except that for low-standing products or products with 
configurations that make application in that location impractical, some 
other prominent location may be used. The top of the label should not 
exceed 74 inches from the base of taller products. The label in the form 
of a ``flap tag'' shall be adhered to the top of the appliance and bent 
(folded at 90[deg]) to hang over the front, if this can be done with 
assurance that it will be readily visible. Labels for split system 
central air conditioners shall be affixed to the condensing unit.
    (7) Use of hang tags. Information prescribed above for labels may be 
displayed in the form of a hang tag, which may be used in place of an 
affixed label. If a hang tag is used, it shall be affixed in such a 
position that it will be prominent to a consumer examining the product.
    (b) Fact sheets--(1) Distribution. (i) Except as provided in 
Subsection c, manufacturers and private labelers must give distributors 
and retailers, including assemblers, fact sheets for the furnaces and 
central air conditioners they sell to them. Distributors must give the 
fact sheets to the retailers, including assemblers, they supply. Each 
fact sheet must contain the information listed in Sec.  305.11(b)(3).
    (ii) Retailers, including assemblers, who sell furnaces or central 
air conditioners to consumers must have fact sheets for the furnaces and 
central air conditioners they sell. They must make the fact sheets 
available to their customers. The fact sheets may be made available to 
customers in any manner, as long as customers are likely to notice them. 
For example, they can be available in a display, where customers can 
take copies of them. They can be kept in a binder at a counter or 
service desk, with a sign telling customers where the fact sheets are. 
Retailers, including assemblers, who negotiate or make sales at a place 
other than their regular places of business must show the fact sheets to 
their customers and let them read the fact sheets before they agree to 
purchase the product.
    (2) Format. All information required to be contained in fact sheets 
must be disclosed clearly and conspicuously.
    (3) Contents. (i) ``Energy Guide'' headline is standard for all fact 
sheets, as for labels.
    (ii) Name of manufacturer or private labeler shall, in the case of a 
corporation, be deemed to be satisfied only by the actual corporate 
name, which may be preceded or followed by the name of the particular 
division of the corporation. In the case of an individual, partnership, 
or association, the name under which the business is conducted shall be 
used.
    (iii) Model number(s) will be the designation given by the 
manufacturer or private labeler.
    (iv) Capacity or size is that determined in accordance with Sec.  
305.7.
    (v) Energy efficiency rating is that determined in accordance with 
Sec.  305.5.
    (vi) Ranges of comparability and of energy efficiency ratings are 
found in section 1 of the appropriate appendices accompanying this part.
    (vii) Placement of the labeled product on the scale shall be 
proportionate to energy efficiency ratings of the lowest and highest 
efficiency ratings forming the scale.
    (viii) Yearly cost information text and tables are found in section 
2 of Appendices G, H and I accompanying this

[[Page 272]]

part. Cost figures are to be determined in accordance with Sec.  305.5 
using the unit energy costs found in table 1 of Sec.  305.9.
    (ix) A statement that the energy costs and energy efficiency ratings 
are based on U.S. Government standard tests is required in all fact 
sheets.
    (x) For central air conditioner fact sheets disclosing efficiency 
ratings for the ``most common'' condenser-evaporator coil combinations, 
the statement should be made in one of the following three ways:
    (A) For fact sheets disclosing the seasonal energy efficiency ratio 
for cooling, the statement should read:

This energy rating is based on U.S. Government standard tests of this 
condenser model combined with the most common coil. The rating may vary 
slightly with different coils.

    (B) For fact sheets disclosing both the seasonal energy efficiency 
ratio for cooling and the heating seasonal performance factor for 
heating, the statement should read:

This energy rating is based on U.S. Government standard tests of this 
condenser model combined with the most common coil. The rating will vary 
slightly with different coils and in different geographic regions.

    (C) For fact sheets disclosing the heating seasonal performance 
factor for heating, the statement should read:

This energy rating is based on U.S. Government standard tests of this 
condenser model combined with the most common coil. The rating will vary 
slightly with different coils and in different geographic regions.

    (xi) Central air conditioner fact sheets disclosing the efficiency 
ratings for specific condenser/coil combinations do not have to contain 
any of the above three statements. Instead, they must contain a general 
disclosure that the energy costs and efficiency ratings are based on 
U.S. Government tests.
    (c) Manufacturers of furnaces and central air conditioners may elect 
to disseminate information regarding the efficiencies and costs of 
operation of their products by means of a directory or similar 
publication, rather than on fact sheets, provided the publication meets 
the following criteria:
    (1) Distribution. (i) It must be distributed to substantially all 
retailers and assemblers of central air conditioners and furnaces 
selling or assembling models listed in the directory.
    (ii) It must be made available at cost to all other interested 
parties.
    (2) Format. All required information must be disclosed clearly and 
conspicuously.
    (3) Contents. (i) Model number(s) will be the designation given by 
the manufacturer or private labeler.
    (ii) Capacity or size is that determined in accordance with Sec.  
305.7.
    (iii) Efficiency rating is that determined in accordance with Sec.  
305.5.
    (iv) Cost disclosures must be substantially equivalent to those 
required on fact sheets.
    (v) A statement that the energy costs and efficiency ratings are 
based on U.S. Government standard tests.
    (vi) Ranges of comparability and of energy efficiency ratings are 
found in section 1 of the appropriate appendices accompanying this part.
    (d) Fluorescent Lamp Ballasts and Luminaires--(1) Contents. 
Fluorescent lamp ballasts that are ``covered products,'' as defined in 
Sec.  305.2(o), and to which standards are applicable under section 325 
of the Act, shall be marked conspicuously, in color-contrasting ink, 
with a capital letter ``E'' printed within a circle. Packaging for such 
fluorescent lamp ballasts, as well as packaging for luminaires into 
which they are incorporated, shall also be marked conspicuously with a 
capital letter ``E'' printed within a circle. For purposes of this 
section, the encircled capital letter ``E'' will be deemed 
``conspicuous,'' in terms of size, if it is as large as either the 
manufacturer's name or another logo, such as the ``UL,'' ``CBM'' or 
``ETL'' logos, whichever is larger, that appears on the fluorescent lamp 
ballast, the packaging for such ballast or the packaging for the 
luminaire into which the covered ballast is incorporated, whichever is 
applicable for purpose of labeling.
    (2) Product Labeling. The encircled capital letter ``E'' on 
fluorescent lamp ballasts must appear conspicuously, in color-
contrasting ink, (i.e., in a color that contrasts with the background on 
which the encircled capital letter ``E'' is placed) on the surface that 
is normally labeled. It may be printed on the

[[Page 273]]

label that normally appears on the fluorescent lamp ballast, printed on 
a separate label, or stamped indelibly on the surface of the fluorescent 
lamp ballast.
    (3) Package Labeling. For purposes of labeling under this section, 
packaging for such fluorescent lamp ballasts and the luminaires into 
which they are incorporated consists of the plastic sheeting, or 
``shrink-wrap,'' covering pallet loads of fluorescent lamp ballasts or 
luminaires as well as any containers in which such fluorescent lamp 
ballasts or the luminaires into which they are incorporated are marketed 
individually or in small numbers. The encircled capital letter ``E'' on 
packages containing fluorescent lamp ballasts or the luminaires into 
which they are incorporated must appear conspicuously, in color-
contrasting ink, on the surface of the package on which printing or a 
label normally appears. If the package contains printing on more than 
one surface, the label must appear on the surface on which the product 
inside the package is described. The encircled capital letter ``E'' may 
be printed on the surface of the package, printed on a label containing 
other information, printed on a separate label, or indelibly stamped on 
the surface of the package. In the case of pallet loads containing 
fluorescent lamp ballasts or the luminaires into which they are 
incorporated, the encircled capital letter ``E'' must appear 
conspicuously, in color-contrasting ink, on the plastic sheeting, unless 
clear plastic sheeting is used and the encircled capital letter ``E'' is 
legible underneath this packaging. The encircled capital letter ``E'' 
must also appear conspicuously on any documentation that would normally 
accompany such a pallet load. The encircled capital letter ``E'' may 
appear on a label affixed to the sheeting or may be indelibly stamped on 
the sheeting. It may be printed on the documentation, printed on a 
separate label that is affixed to the documentation or indelibly stamped 
on the documentation.
    (e) Lamps--(1)(i) Any covered product that is a compact fluorescent 
lamp or general service incandescent lamp (including an incandescent 
reflector lamp) shall be labeled clearly and conspicuously on the 
product's principal display panel with the following information:
    (A) The number of lamps included in the package, if more than one;
    (B) The design voltage of each lamp included in the package, if 
other than 120 volts;
    (C) The light output of each lamp included in the package, expressed 
in average initial lumens;
    (D) The electrical power consumed (energy used) by each lamp 
included in the package, expressed in average initial wattage;
    (E) The life of each lamp included in the package, expressed in 
hours.
    (ii) The light output, energy usage and life ratings of any covered 
product that is a medium base compact fluorescent lamp or general 
service incandescent lamp (including an incandescent reflector lamp), 
shall appear in that order and with equal clarity and conspicuousness on 
the product's principal display panel. The light output, energy usage 
and life ratings shall be disclosed in terms of ``lumens,'' ``watts'' 
and ``hours'' respectively, with the lumens, watts and hours rating 
numbers each appearing in the same type style and size and with the 
words ``lumens,'' ``watts'' and ``hours'' each appearing in the same 
type style and size. The words ``light output,'' ``energy used'' and 
``life'' shall precede and have the same conspicuousness as both the 
rating numbers and the words ``lumens,'' ``watts'' and ``hours,'' except 
that the letters of the words ``lumens,'' ``watts'' and ``hours'' shall 
be approximately 50% of the sizes of those used for the words ``light 
output,'' ``energy used'' and ``life'' respectively.
    (iii) The light output, energy usage and life ratings of any covered 
product that is a medium base compact fluorescent lamp or general 
service incandescent lamp (including an incandescent reflector lamp), 
shall be measured at 120 volts, regardless of the lamp's design voltage. 
If a lamp's design voltage is 125 volts or 130 volts, the disclosures of 
the wattage, light output and life ratings shall in each instance be:
    (A) At 120 volts and followed by the phrase ``at 120 volts.'' In 
such case, the labels for such lamps also may disclose the lamp's 
wattage, light output and

[[Page 274]]

life at the design voltage (e.g., ``Light Output 1710 Lumens at 125 
volts''); or
    (B) At the design voltage and followed by the phrase ``at (125 
volts/130 volts)'' if the ratings at 120 volts are disclosed clearly and 
conspicuously on another panel of the package, and if all panels of the 
package that contain a claimed light output, wattage or life clearly and 
conspicuously identify the lamp as ``(125 volt/130 volt),'' and if the 
principal display panel clearly and conspicuously discloses the 
following statement:

This product is designed for (125/130) volts. When used on the normal 
line voltage of 120 volts, the light output and energy efficiency are 
noticeably reduced. See (side/back) panel for 120 volt ratings.

    (iv) For any covered product that is an incandescent reflector lamp, 
the required disclosure of light output shall be given for the lamp's 
total forward lumens.
    (v) For any covered product that is a compact fluorescent lamp, the 
required light output disclosure shall be measured at a base-up 
position; but, if the manufacturer or private labeler has reason to 
believe that the light output at a base-down position would be more than 
5% different, the label also shall disclose the light output at the 
base-down position or, if no test data for the base-down position exist, 
the fact that at a base-down position the light output might be more 
than 5% less.
    (vi) For any covered product that is a compact fluorescent lamp or a 
general service incandescent lamp (including an incandescent reflector 
lamp), there shall be clearly and conspicuously disclosed on the 
principal display panel the following statement:

To save energy costs, find the bulbs with the (beam spread and) light 
output you need, then choose the one with the lowest watts.''

    (vii) For any covered product that is a general service incandescent 
lamp and operates with multiple filaments, the principal display panel 
shall disclose clearly and conspicuously, in the manner required by 
paragraph (e)(1)(i)-(iii) and (vi) of this section, the lamp's wattage 
and light output at each of the lamp's levels of light output and the 
lamp's life measured on the basis of the filament that fails first.
    (2) Any covered product that is a general service fluorescent lamp 
or an incandescent reflector lamp shall be labeled clearly and 
conspicuously with a capital letter ``E'' printed within a circle and 
followed by an asterisk. The label shall also clearly and conspicuously 
disclose, either in close proximity to that asterisk or elsewhere on the 
label, the following statement:

*[The encircled ``E''] means this bulb meets Federal minimum efficiency 
standards.

    (i) If the statement is not disclosed on the principal display 
panel, the asterisk shall be followed by the following statement:

See [Back,Top, Side] panel for details.

    (ii) For purposes of this paragraph (e), the encircled capital 
letter ``E'' shall be clearly and conspicuously disclosed in color-
contrasting ink on the label of any covered product that is a general 
service fluorescent lamp and will be deemed ``conspicuous,'' in terms of 
size, if it appears in typeface at least as large as either the 
manufacturer's name or logo or another logo disclosed on the label, such 
as the ``UL'' or ``ETL'' logos, whichever is larger.
    (3)(i) A manufacturer or private labeler who distributes general 
service fluorescent lamps, compact fluorescent lamps, or general service 
incandescent lamps (including incandescent reflector lamps) without 
labels attached to the lamps or without labels on individual retail-sale 
packaging for one or more lamps may meet the disclosure requirements of 
paragraphs (e)(1) and (e)(2) of this section by making the required 
disclosures, in the manner and form required by those paragraphs, on the 
bulk shipping cartons that are to be used to display the lamps for 
retail sale.
    (ii) Instead of labeling any covered product that is a general 
service fluorescent lamp with the encircled ``E'' and with the statement 
described in paragraph (e)(2) of this section, a manufacturer or private 
labeler who would not otherwise put a label on such a lamp may meet the 
disclosure requirements of that paragraph by permanently marking the 
lamp clearly and conspicuously with the encircled ``E''.
    (4) Any manufacturer or private labeler who makes any representation 
on

[[Page 275]]

a label of any covered product that is a general service fluorescent 
lamp, medium base compact fluorescent lamp, or general service 
incandescent lamp (including an incandescent reflector lamp), regarding 
the cost of operation of such lamp shall clearly and conspicuously 
disclose in close proximity to such representation the assumptions upon 
which it is based, including, e.g., purchase price, unit cost of 
electricity, hours of use, patterns of use.
    (5) Any cartons in which any covered products that are general 
service fluorescent lamps, medium base compact fluorescent lamps, or 
general service incandescent lamps (including incandescent reflector 
lamps), are shipped within the United States or imported into the United 
States shall disclose clearly and conspicuously the following statement:
    These lamps comply with Federal energy efficiency labeling 
requirements.
    (f) Plumbing Fixtures--(1) Showerheads and Faucets. Showerheads and 
faucets shall be marked and labeled as follows:
    (i) Each showerhead and flow restricting or controlling spout end 
device shall bear a permanent legible marking indicating the flow rate, 
expressed in gallons per minute (gpm) or gallons per cycle (gpc), and 
the flow rate value shall be the actual flow rate or the maximum flow 
rate specified by the standards established in subsection (j) of section 
325 of the Act, 42 U.S.C. 6295(j). Except where impractical due to the 
size of the fitting, each flow rate disclosure shall also be given in 
liters per minute (L/min) or liters per cycle (L/cycle). For purposes of 
this section, the marking indicating the flow rate will be deemed 
``legible,'' in terms of placement, if it is located in close proximity 
to the manufacturer's identification marking.
    (ii) Each showerhead and faucet shall bear a permanent legible 
marking to identify the manufacturer. This marking shall be the trade 
name, trademark, or other mark known to identify the manufacturer. Such 
marking shall be located where it can be seen after installation.
    (iii) Each showerhead and faucet shall be marked ``A112.18.1M'' to 
demonstrate compliance with the applicable ASME standard. The marking 
shall be by means of either a permanent mark on the product, a label on 
the product, or a tag attached to the product.
    (iv) The package for each showerhead and faucet shall disclose the 
manufacturer's name and the model number.
    (v) The package or any label attached to the package for each 
showerhead or faucet shall contain at least the following: 
``A112.18.1M'' and the flow rate expressed in gallons per minute (gpm) 
or gallons per cycle (gpc), and the flow rate value shall be the actual 
flow rate or the maximum flow rate specified by the standards 
established in subsection (j) of section 325 of the Act, 42 U.S.C. 
6295(j). Each flow rate disclosure shall also be given in liters per 
minute (L/min) or liters per cycle (L/cycle).
    (2) Water Closets and Urinals. Water closets and urinals shall be 
marked and labeled as follows:
    (i) Each such fixture (and flush omet er valve associated with such 
fixture) shall bear a permanent legible marking indicating the flow 
rate, expressed in gallons per flush (gpf), and the water use value 
shall be the actual water use or the maximum water use specified by the 
standards established in subsection (k) of section 325 of the Act, 42 
U.S.C. 6295(k). Except where impractical due to the size of the fixture, 
each flow rate disclosure shall also be given in liters per flush (Lpf). 
For purposes of this section, the marking indicating the flow rate will 
be deemed ``legible,'' in terms of placement, if it is located in close 
proximity to the manufacturer's identification marking.
    (ii) Each water closet (and each component of the water closet if 
the fixture is comprised of two or more components) and urinal shall be 
marked with the manufacturer's name or trademark or, in the case of 
private labeling, the name or registered trademark of the customer for 
whom the unit was manufactured. This mark shall be legible, readily 
identified, and applied so as to be permanent. The mark shall be located 
so as to be visible after the fixture is installed, except for fixtures 
built into or for a counter or cabinet.
    (iii) Each water closet (and each component of the water closet if 
the fixture is comprised of two or more components) and urinal shall be

[[Page 276]]

marked at a location determined by the manufacturer with the designation 
``ASME A112.19.2M'' to signify compliance with the applicable standard. 
This mark need not be permanent, but shall be visible after 
installation.
    (iv) The package, and any labeling attached to the package, for each 
water closet and urinal shall disclose the flow rate, expressed in 
gallons per flush (gpf), and the water use value shall be the actual 
water use or the maximum water use specified by the standards 
established in subsection (k) of section 325 of the Act, 42 U.S.C. 
6295(k). Each flow rate disclosure shall also be given in liters per 
flush (Lpf).
    (v) With respect to any gravity tank-type white 2-piece toilet 
offered for sale or sold before January 1, 1997, which has a water use 
greater than 1.6 gallons per flush (gpf), any printed matter distributed 
or displayed in connection with such product (including packaging and 
point-of-sale material, catalog material, and print advertising) shall 
include, in a conspicuous manner, the words ``For Commercial Use Only.''
    (3) Annual Operating Cost Claims for Covered Plumbing Products. 
Until such time as the Commission has prescribed a format and manner of 
display for labels conveying estimated annual operating costs of covered 
showerheads, faucets, water closets, and urinals or ranges of estimated 
annual operating costs for the types or classes of such plumbing 
products, the Act prohibits manufacturers from making such 
representations on the labels of such covered products. 42 U.S.C. 
6294(c)(8). If, before the Commission has prescribed such a format and 
manner of display for labels of such products, a manufacturer elects to 
provide for any such product a label conveying such a claim, it shall 
submit the proposed claim to the Commission so that a format and manner 
of display for a label may be prescribed.

[52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989; 59 
FR 54965, Oct. 25, 1993; 59 FR 34033-34035, July 1, 1994; 59 FR 49564, 
Sept. 28, 1994; 59 FR 67528, Dec. 29, 1994; 60 FR 14210, Mar. 16, 1995; 
60 FR 31081, June 13, 1995; 61 FR 33653, June 28, 1996; 63 FR 38745, 
July 20, 1998; 65 FR 17563, Apr. 3, 2000; 67 FR 47444, July 19, 2002; 68 
FR 36463, June 18, 2003]

    Effective Date Note: At 68 FR 55821, Sept. 20, 2003, Sec.  305.11 
was amended by revising paragraph (a)(5)(i)(H)(2) effective February 24, 
2004. For the convenience of the user the revised text is set forth as 
follows:

Sec.  305.11  Labeling for covered products.

                                * * * * *

    (a) * * *
    (5) * * *
    (i) * * *
    (H) * * *
    (2) For clothes washers and dishwashers, the statement will read as 
follows (fill in the blanks with the appropriate appliance name, the 
operating cost, the number of loads per week, the year, and the energy 
cost figures): [Clothes Washers, or Dishwashers] using more energy cost 
more to operate. This model's estimated yearly operating cost is: 
[Electric cost figure will be boxed] when used with an electric water 
heater [Gas cost figure will be boxed] when used with a natural gas 
water heater. Based on [4 washloads a week for dishwashers, or 8 
washloads a week for clothes washers], and a [Year] U.S. Government 
national average cost of $-- per kWh for electricity and $-- per therm 
for natural gas. Your actual operating cost will vary depending on your 
local utility rates and your use of the product.

                                * * * * *



Sec.  305.12  Additional information relating to energy consumption.

    Additional information relating to energy consumption which must be 
included on labels, separately attached to the product, or shipped with 
the product will be published as a separate section 3 of the appendices 
accompanying this part. No additional information will be required 
without public notice and an opportunity for written comments.



Sec.  305.13  Promotional material displayed or distributed at point of sale.

    (a)(1) Any manufacturer, distributor, retailer or private labeler 
who prepares printed material for display or distribution at point of 
sale concerning a covered product (except fluorescent lamp ballasts, 
general service fluorescent lamps, medium base compact fluorescent 
lamps, or general service incandescent lamps including incandescent 
reflector lamps, showerheads, faucets, water closets or urinals) shall

[[Page 277]]

clearly and conspicuously include in such printed material the following 
required disclosure:

    Before purchasing this appliance, read important information about 
its estimated annual energy consumption or energy efficiency rating that 
is available from your retailer.

    (2) Any manufacturer, distributor, retailer or private labeler who 
prepares printed material for display or distribution at point of sale 
concerning a covered product that is a fluorescent lamp ballast to which 
standards are applicable under section 325 of the Act, shall disclose 
conspicuously in such printed material, in each description of such 
fluorescent lamp ballast, an encircled capital letter ``E''.
    (3) Any manufacturer, distributer, retailer, or private labeler who 
prepares printed material for display or distribution at point of sale 
concerning a covered product that is a general service fluorescent lamp, 
medium base compact fluorescent lamp, or general service incandescent 
lamp (including an incandescent reflector lamp), and who makes any 
representation in such promotional material regarding the cost of 
operation of such lamp shall clearly and conspicuously disclose in close 
proximity to such representation the assumptions upon which it is based, 
including, e.g., purchase price, unit cost of electricity, hours of use, 
and patterns of use.
    (4) Any manufacturer, distributor, retailer, or private labeler who 
prepares printed material for display or distribution at point-of-sale 
concerning a covered product that is a showerhead, faucet, water closet, 
or urinal shall clearly and conspicuously include in such printed 
material the product's water use, expressed in gallons and liters per 
minute (gpm and L/min) or per cycle (gpc and L/cycle) or gallons and 
liters per flush (gpf and Lpf) as specified in Sec.  305.11(f).
    (b) This section shall not apply to:
    (1) Written warranties.
    (2) Use and care manuals, installation instructions, or other 
printed material containing primarily post-purchase information for the 
purchaser.
    (3) Printed material containing only the identification of a covered 
product, pricing information and/or non-energy related representations 
concerning that product.
    (4) Any printed material distributed prior to the effective date 
listed in Sec.  305.4(e).

[59 FR 34036, July 1, 1994, as amended at 59 FR 67530, Dec. 29, 1994; 60 
FR 14211, Mar. 16, 1995]



Sec.  305.14  Catalogs.

    (a) Any manufacturer, distributor, retailer, or private labeler who 
advertises in a catalog a covered product (except fluorescent lamp 
ballasts, general service fluorescent lamps, medium base compact 
fluorescent lamps, general service incandescent lamps including 
incandescent reflector lamps, showerheads, faucets, water closets or 
urinals) shall include in such catalog, on each page that lists the 
covered product, the following information required to be disclosed on 
the label:
    (1) The capacity of the model.
    (2) The estimated annual energy consumption for refrigerators, 
refrigerator-freezers, freezers, clothes washers, dishwashers and water 
heaters.
    (3) The energy efficiency rating for room air conditioners, central 
air conditioners, furnaces, and pool heaters.
    (4) The range of estimated annual energy consumption or energy 
efficiency ratings, which shall be those that are current at the closing 
date for printing or the printing deadline of the catalog.
    (b) Any manufacturer, distributor, retailer, or private labeler who 
advertises fluorescent lamp ballasts that are ``covered products,'' as 
defined in Sec.  305.2(o), and to which standards are applicable under 
section 325 of the Act, in a catalog, from which they may be purchased 
by cash, charge account or credit terms, shall disclose conspicuously in 
such catalog, in each description of such fluorescent lamp ballasts, a 
capital letter ``E'' printed within a circle.
    (c)(1) Any manufacturer, distributor, retailer, or private labeler 
who advertises in a catalog a covered product that is a general service 
fluorescent lamp, medium base compact fluorescent lamp, or general 
service incandescent lamp (including an incandescent reflector lamp), 
shall disclose clearly and conspicuously in such catalog:

[[Page 278]]

    (i) On each page listing any covered product that is a compact 
fluorescent lamp or a general service incandescent lamp (including an 
incandescent reflector lamp), all the information concerning that lamp, 
except for the number of units in the package, required by Sec.  
305.11(e)(1) of this part to be disclosed on the lamp's label; provided, 
however, that, for a catalog not distributed to consumers for making 
purchases for personal use or consumption by individuals, the 
disclosures need not comply with the format provisions of Sec.  305.11 
(e)(1)(ii) of this part, but must be clear and conspicuous; and
    (ii) On each page listing a covered product that is a general 
service fluorescent lamp or an incandescent reflector lamp, all the 
information required by Sec.  305.11(e)(2) of this part to be disclosed 
on the lamp's label according to the following format:
    (A) The encircled ``E'' shall appear with each lamp entry; and
    (B) The accompanying statement shall appear at least once on the 
page.
    (2) Any manufacturer, distributor, retailer, or private labeler who 
advertises a covered product that is a general service fluorescent lamp, 
medium base compact fluorescent lamp, or general service incandescent 
lamp (including an incandescent reflector lamp), in a catalog who makes 
any representation in such catalog regarding the cost of operation of 
such lamp shall clearly and conspicuously disclose in close proximity to 
such representation the assumptions upon which it is based, including, 
e.g., purchase price, unit cost of electricity, hours of use, patterns 
of use.
    (d) Any manufacturer, distributor, retailer, or private labeler who 
advertises a covered product that is a showerhead, faucet, water closet, 
or urinal in a catalog, from which it may be purchased, shall include in 
such catalog, on each page that lists the covered product, the product's 
water use, expressed in gallons and liters per minute (gpm and L/min) or 
per cycle (gpc and L/cycle) or gallons and liters per flush (gpf and 
Lpf) as specified in Sec.  305.11(f).

[59 FR 34036, July 1, 1994, as amended at 59 FR 49564, Sept. 28, 1994; 
59 FR 67530, Dec. 29, 1994; 60 FR 14211, Mar. 16, 1995]

                         Additional Requirements



Sec.  305.15  Test data records.

    (a) Test data shall be kept on file by the manufacturer of a covered 
product for a period of two years after production of that model has 
been terminated.
    (b) Upon notification by the Commission or its designated 
representative, a manufacturer or private labeler shall provide, within 
30 days of the date of such request, the underlying test data from which 
the water use or energy consumption rate, the energy efficiency rating, 
the estimated annual cost of using each basic model, or the light 
output, energy usage and life ratings and, for fluorescent lamps, the 
color rendering index, for each basic model or lamp type were derived.

[52 FR 46894, Dec. 10, 1987, as amended at 59 FR 67530, Dec. 29, 1994]



Sec.  305.16  Required testing by designated laboratory.

    Upon notification by the Commission or its designated 
representative, a manufacturer of a covered product shall supply, at the 
manufacturer's expense, no more than two of each model of each product 
to a laboratory, which will be identified by the Commission or its 
designated representative in the notice, for the purpose of ascertaining 
whether the estimated annual energy consumption, the estimated annual 
operating cost, or the energy efficiency rating, or the light output, 
energy usage and life ratings or, for general service fluorescent lamps, 
the color rendering index, disclosed on the label or fact sheet or in an 
industry directory, or, as required in a catalog, or the representation 
made by the label that the product is in compliance with applicable 
standards in section 325 of the Act, 42 U.S.C. 6295, is accurate. Such a 
procedure will only be followed after the Commission or its staff has 
examined the underlying test data provided by the manufacturer as 
required by Sec.  305.15(b) and after the manufacturer has been afforded 
the opportunity to reverify test results from which the estimated annual 
energy consumption, the estimated annual operating cost, or the energy 
efficiency rating for each basic model was derived, or the light

[[Page 279]]

output, energy usage and life ratings or, for general service 
fluorescent lamps, the color rendering index, for each basic model or 
lamp type was derived. A representative designated by the Commission 
shall be permitted to observe any reverification procedures required by 
this part, and to inspect the results of such reverification. The 
Commission will pay the charges for testing by designated laboratories.

[59 FR 67530, Dec. 29, 1994]

                           Effect of This Part



Sec.  305.17  Effect on other law.

    This regulation supersedes any State regulation to the extent 
required by section 327 of the Act. Pursuant to the Act, all State 
regulations that require the disclosure for any covered product of 
information with respect to energy consumption, other than the 
information required to be disclosed in accordance with this part, are 
superseded.



Sec.  305.18  Stayed or invalid parts.

    If any section or portion of a section of this part is stayed or 
held invalid, the remainder of the part will not be affected.

[52 FR 46894, Dec. 10, 1987. Redesignated at 59 FR 34036, July 1, 1994]



Sec.  305.19  Exemptions.

    The Commission has exempted manufacturers, private labelers, 
distributors, and/or retailers in some instances from specific 
requirements of this part. These exemptions are listed in this section. 
In some circumstances, use of the exemptions is conditioned on 
alternative performance by manufacturers, private labelers, 
distributors, and/or retailers.
    (a) Limited conditional exemption for manufacturers from the 
prohibition against the inclusion of non-required information on the 
label of covered products that qualify for inclusion in the ENERGY STAR 
Program maintained by the Department of Energy (``DOE'') and the 
Environmental Protection Agency (``EPA''). Those manufacturers 
participating in the DOE/EPA ENERGY STAR Program who wish to place the 
ENERGY STAR logo on EnergyGuides affixed to covered products they 
manufacture that qualify for inclusion in the ENERGY STAR Program are 
granted a conditional exemption from the prohibition against placing 
``information other than that specified'' by the Rule on the 
EnergyGuides they attach to their qualifying products. This exemption is 
based on several conditions:
    (1) The ENERGY STAR logo is permitted on the EnergyGuides of only 
those covered products that meet the ENERGY STAR Program qualification 
criteria that are current at the time the products are labeled.
    (2) Only manufacturers that have signed a Memorandum of 
Understanding with DOE or EPA may add the ENERGY STAR logo to labels on 
qualifying covered products; such manufacturers may add the ENERGY STAR 
logo to labels only on those covered products that are contemplated by 
the Memorandum of Understanding.
    (3) Manufacturers that choose to avail themselves of the conditional 
exemption may print the ENERGY STAR logo on EnergyGuides for qualified 
products as part of the usual label printing process or may place the 
logo on EnergyGuides for qualified products by whatever means is most 
efficient for them, provided such placement complies with the 
requirements of paragraph (a)(4), of this section.
    (4) Manufacturers must place the logo on the EnergyGuide above the 
comparability bar in the box that contains the applicable range of 
comparability. The precise location of the logo will vary depending on 
where the caret indicating the position of the labeled model on the 
scale appears (see the sample label). The required dimensions of the 
logo must be one and one-eighth inches (3 cm.) in width and three-
quarters of an inch (2 cm.) in height. Manufacturers are prohibited from 
placing the logo in a way that would obscure, detract from, alter the 
dimensions of, or touch any element of the EnergyGuide, which in all 
other respects must conform to the requirements of this part. The ENERGY 
STAR logo must be in process black ink to match the print specifications 
for the EnergyGuide. The background must remain in process yellow to 
match the rest of the label.

[[Page 280]]

    (5) Manufacturers must add a sentence in process black ink that 
explains the significance of the ENERGY STAR logo in ten-point Helvetica 
Condensed Black typeface. The sentence must be next to the logo, above 
the comparability bar that shows the ``least'' and ``most'' numbers. The 
sentence must read:

    ENERGY STAR A symbol of energy efficiency.

    (b) [Reserved]

[65 FR 17563, Apr. 3, 2000]

      Appendix A1 to Part 305--Refrigerators With Automatic Defrost

                           [Range Information]
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 2.5.....................                318                338
2.5 to 4.4........................                319                385
4.5 to 6.4........................                383                436
6.5 to 8.4........................                (*)                (*)
8.5 to 10.4.......................                348                380
10.5 to 12.4......................                (*)                (*)
12.5 to 14.4......................                (*)                (*)
14.5 to 16.4......................                428                428
16.5 and over.....................                318               438
------------------------------------------------------------------------
* No data submitted for units meeting the Department of Energy's Energy
  Conservation Standards effective July 1, 2001.


[66 FR 57868, Nov. 19, 2001]

 Appendix A2 to Part 305--Refrigerators and Refrigerators-Freezers With 
                             Manual Defrost

                           [Range Information]
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 2.5.....................                280                320
2.5 to 4.4........................                292                345
4.5 to 6.4........................                296                364
6.5 to 8.4........................                387                387
8.5 to 10.4.......................                273                379
10.5 to 12.4......................                286                286
12.5 to 14.4......................                (*)                (*)
14.5 to 16.4......................                (*)                (*)
16.5 to 18.4......................                396                438
18.5 to 20.4......................                (*)                (*)
20.5 to 22.4......................                (*)                (*)
22.5 to 24.4......................                (*)                (*)
24.5 to 26.4......................                (*)                (*)
26.5 to 28.4......................                (*)                (*)
28.5 and over.....................                (*)               (*)
------------------------------------------------------------------------
* No data submitted for units meeting the Department of Energy's Energy
  Conservation Standards effective July 1, 2001.


[66 FR 57868, Nov. 19, 2001; 66 FR 63749, Dec. 10, 2001]

 Appendix A3 to Part 305--Refrigerator-Freezers With Partial Automatic 
                                 Defrost

                            Range Information
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 10.5....................                285                434
10.5 to 12.4......................                313                313
12.5 to 14.4......................                (*)                (*)
14.5 to 16.4......................                (*)                (*)

[[Page 281]]

 
16.5 to 18.4......................                (*)                (*)
18.5 to 20.4......................                (*)                (*)
20.5 to 22.4......................                (*)                (*)
22.5 to 24.4......................                (*)                (*)
24.5 to 26.4......................                (*)                (*)
26.5 to 28.4......................                (*)                (*)
28.5 and over.....................                (*)               (*)
------------------------------------------------------------------------
(*) No data submitted for units meeting the Department of Energy's
  Energy Conservation Standards effective July 1, 2001.


[66 FR 57869, Nov. 19, 2001]

 Appendix A4 to Part 305--Refrigerator-Freezers With Automatic Defrost 
      With Top-Mounted Freezer Without Through-the-Door Ice Service

                            Range Information
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 10.5....................                356                356
10.5 to 12.4......................                408                409
12.5 to 14.4......................                394                440
14.5 to 16.4......................                372                460
16.5 to 18.4......................                414                489
18.5 to 20.4......................                416                509
20.5 to 22.4......................                457                530
22.5 to 24.4......................                499                558
24.5 to 26.4......................                523                560
26.5 to 28.4......................                (*)                (*)
28.5 and over.....................                (*)               (*)
------------------------------------------------------------------------
(*) No data submitted for units meeting the Department of Energy's
  Energy Conservation Standards effective July 1, 2001.


[66 FR 57869, Nov. 19, 2001]

 Appendix A5 to Part 305--Refrigerator-Freezers With Automatic Defrost 
     With Side-Mounted Freezer Without Through-the-Door Ice Service

                            Range Information
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 10.5....................                (*)                (*)
10.5 to 12.4......................                (*)                (*)
12.5 to 14.4......................                (*)                (*)
14.5 to 16.4......................                (*)                (*)
16.5 to 18.4......................                (*)                (*)
18.5 to 20.4......................                623                624
20.5 to 22.4......................                568                640
22.5 to 24.4......................                605                643
24.5 to 26.4......................                591                659
26.5 to 28.4......................                (*)                (*)
28.5 and over.....................                614               679
------------------------------------------------------------------------
(*) No data submitted for units meeting the Department of Energy's
  Energy Conservation Standards effective July 1, 2001.


[66 FR 57869, Nov. 19, 2001]

[[Page 282]]

 Appendix A6 to Part 305--Refrigerator-Freezers With Automatic Defrost 
    With Bottom-Mounted Freezer Without Through-the-Door Ice Service

                            Range Information
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 10.5....................                447                500
10.5 to 12.4......................                (*)                (*)
12.5 to 14.4......................                (*)                (*)
14.5 to 16.4......................                544                544
16.5 to 18.4......................                502                548
18.5 to 20.4......................                564                564
20.5 to 22.4......................                511                572
22.5 to 24.4......................                (*)                (*)
24.5 to 26.4......................                (*)                (*)
26.5 to 28.4......................                (*)                (*)
28.5 and over.....................                (*)               (*)
------------------------------------------------------------------------
(*) No data submitted for units meeting the Department of Energy's
  Energy Conservation Standards effective July 1, 2001.


[66 FR 57870, Nov. 19, 2001]

 Appendix A7 to Part 305--Refrigerator-freezers With Automatic Defrost 
       With Top-mounted Freezer With Through-the-door Ice Service

                          [Rangee Information]
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 10.5....................                (*)                (*)
10.5 to 12.4......................                544                544
12.5 to 14.4......................                544                544
14.5 to 16.4......................                (*)                (*)
16.5 to 18.4......................                (*)                (*)
18.5 to 20.4......................                (*)                (*)
20.5 to 22.4......................                555                555
22.5 to 24.4......................                (*)                (*)
24.5 to 26.4......................                (*)                (*)
26.5 to 28.4......................                (*)                (*)
28.5 and over.....................                (*)               (*)
------------------------------------------------------------------------
* No data submitted for units meeting the Department of Energy's Energy
  Conservation Standards effectively July 1, 2001.


[66 FR 57870, Nov. 19, 2001]

 Appendix A8 to Part 305--Refrigerator-freezers With Automatic Defrost 
       With Side-mounted Freezer With Through-the-door Ice Service

                           [Range Information]
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh.yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 10.5....................                (*)                (*)
10.5 to 12.4......................                (*)                (*)
12.5 to 14.4......................                (*)                (*)
14.5 to 16.4......................                (*)                (*)
16.5 to 18.4......................                (*)                (*)
18.5 to 20.4......................                647                650
20.5 to 22.4......................                597                686
22.5 to 24.4......................                617                698
24.5 to 26.4......................                618                727
26.5 to 28.4......................                647                751
28.5 and over.....................                691               765
------------------------------------------------------------------------
* No data submitted for units meeting the Department of Energy's Energy
  Conservation Standards effective July 1, 2001.


[[Page 283]]

              Cost Information for Appendices A1 Through A8

    When the ranges of comparability in Appendices A1 through A8 are 
used on EnergyGuide labels for refrigerators and refrigerator-freezers, 
the estimated annual operating cost disclosure appearing in the box at 
the bottom of the labels must be derived using the 2001 Representative 
Average Unit Cost for electricity (8.29[cent] per kilowatt-hour), and 
the text below the box must identify the cost as such.

[66 FR 57871, Nov. 19, 2001]

      Appendix B1 to Part 305--Upright Freezers With Manual Defrost

                           [Range information]
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total             consumption  (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 5.5.....................                (*)                (*)
5.5 to 7.4........................                354                354
7.5 to 9.4........................                372                372
9.5 to 11.4.......................                392                392
11.5 to 13.4......................                409                410
13.5 to 15.4......................                442                454
15.5 to 17.4......................                477                482
17.5 to 19.4......................                (*)                (*)
19.5 to 21.4......................                512                527
21.5 to 23.4......................                (*)                (*)
23.5 to 25.4......................                580                580
25.5 to 27.4......................                (*)                (*)
27.5 to 29.4......................                (*)                (*)
29.5 and over.....................              1,748             1,748
------------------------------------------------------------------------
* No data submitted for units meeting the Department of Energy's Energy
  Conservation Standards effective July 1, 2001.


[67 FR 4173, Jan. 29, 2002]

    Appendix B2 to Part 305--Upright Freezers With Automatic Defrost

                           [Range Information]
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 5.5.....................                482                491
5.5 to 7.4........................                (*)                (*)
7.5 to 9.4........................                (*)                (*)
9.5 to 11.4.......................                564                564
11.5 to 13.4......................                (*)                (*)
13.5 to 15.4......................                621                655
15.5 to 17.4......................                682                683
17.5 to 19.4......................                742                742
19.5 to 21.4......................                745                763
21.5 to 23.4......................                796                796
23.5 to 25.4......................                (*)                (*)
25.5 to 27.4......................                (*)                (*)
27.5 to 29.4......................                (*)                (*)
29.5 and over.....................              2,003             2,033
------------------------------------------------------------------------
* No data submitted for units meeting the Department of Energy's Energy
  Conservation Standards effective July 1, 2001.


[66 FR 57871, Nov. 19, 2001]

     Appendix B3 to Part 305--Chest Freezers and All Other Freezers

                           [Range Information]
------------------------------------------------------------------------
                                      Range of estimated annual energy
    Manufacturer's rated total              consumption (kWh/yr.)
 refrigerated volume in cubic feet -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 5.5.....................                166                245
5.5 to 7.4........................                276                280
7.5 to 9.4........................                294                294

[[Page 284]]

 
9.5 to 11.4.......................                312                312
11.5 to 13.4......................                350                362
13.5 to 15.4......................                394                397
15.5 to 17.4......................                (*)                (*)
17.5 to 19.4......................                445                445
19.5 to 21.4......................                480                480
21.5 to 23.4......................                512                532
23.5 to 25.4......................                569                570
25.5 to 27.4......................                (*)                (*)
27.5 to 29.4......................                (*)                (*)
29.5 and over.....................                (*)               (*)
------------------------------------------------------------------------
* No data submitted for units meeting the Department of Energy's Energy
  Conservation Standards effective July 1, 2001.

              Cost Information for Appendices B1 Through B3

    When the ranges of comparability in Appendices B1 through B3 are 
used on EnergyGuide labels for freezers, the estimated annual operating 
cost disclosure appearing in the box at the bottom of the labels must be 
derived using the 2001 Representative Average Unit Cost for electricity 
(8.29[cent] per kilowatt-hour), and the text below the box must identify 
the cost as such.

[66 FR 57872, Nov. 19, 2001]

              Appendix C1 to Part 305--Compact Dishwashers

                            Range Information

    ``Compact'' includes countertop dishwasher models with a capacity of 
fewer than eight (8) place settings. Place settings shall be in 
accordance with appendix C to 10 CFR Part 430, subpart B. Load patterns 
shall conform to the operating normal for the model being tested.

------------------------------------------------------------------------
                                      Range of estimated annual energy
                                           consumption (k Wh/yr.)
         Capacity Compact          -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Compact...........................                176                176
------------------------------------------------------------------------

                            Cost Information

    When the above ranges of comparability are used on Energy Guide 
labels for compact-sized dishwashers, the estimated annual operating 
cost disclosure appearing in the box at the bottom of the labels must be 
derived using the 2002 Representative Average Unit Costs for electricity 
(8.28[cent] per kilo Watt-hour) and natural gas (65.6[cent] per therm), 
and the text below the box must identify the costs as such.

[67 FR 47445, July 19, 2002]

              Appendix C2 to Part 305--Standard Dishwashers

                            Range Information

    ``Standard'' includes portable or built-in dishwasher models with a 
capacity of eight (8) or more place settings. Place settings shall be in 
accordance with appendix C to 10 CFR part 430, subpart B. Load patterns 
shall conform to the operating normal for the model being tested.

------------------------------------------------------------------------
                                                            Range of
                                                        estimated annual
                                                             energy
                       Capacity                            consumption
                                                            (kWh/yr.)
                                                       -----------------
                                                          Low      High
------------------------------------------------------------------------
Standard..............................................      222      653
------------------------------------------------------------------------


[[Page 285]]

                            Cost Information

    When the above ranges of comparability are used on EnergyGuide 
labels for standard-sized dishwashers, the estimated annual operating 
cost disclosure appearing in the box at the bottom of the labels must be 
derived using the 2003 Representative Average Unit Costs for electricity 
(8.41[cent] per kiloWatt-hour) and natural gas (81.6[cent] per therm), 
and the text below the box must identify the costs as such.

[68 FR 47451, Aug. 11, 2003]

               Appendix D1 to Part 305--Water Heaters--Gas

                           [Range Information]
------------------------------------------------------------------------
          Capacity                 Range of estimated annual energy
-----------------------------  consumption (therms/yr. and gallons/yr.)
                             -------------------------------------------
                               Natural gas therms/   Propane gallons/yr.
      First hour rating                yr.         ---------------------
                             ----------------------
                                 Low        High       Low        High
------------------------------------------------------------------------
Less than 21................        (*)        (*)        (*)        (*)
21 to 24....................        (*)        (*)        (*)        (*)
25 to 29....................        (*)        (*)        (*)        (*)
30 to 34....................        (*)        (*)        (*)        (*)
35 to 40....................        (*)        (*)        (*)        (*)
41 to 47....................        242        263        265        284
48 to 55....................        235        278        257        304
56 to 64....................        238        273        262        299
65 to 74....................        215        283        249        310
75 to 86....................        220        288        266        317
87 to 99....................        255        295        279        310
100 to 114..................        268        300        294        329
115 to 131..................        288        288        317        336
Over 131....................        288        349        317        383
------------------------------------------------------------------------
* No data submitted.


[59 FR 48797, Sept. 23, 1994, as amended at 59 FR 49564, Sept. 28, 1994]

            Appendix D2 to Part 305--Water Heaters--Electric

                           [Range Information]
------------------------------------------------------------------------
             Capacity                 Range of estimated annual energy
-----------------------------------         consumption (kWh/yr.)
                                   -------------------------------------
         First hour rating                 Low                High
------------------------------------------------------------------------
Less than 21......................               4672               4672
21 to 24..........................               4769               4769
25 to 29..........................               4879               4879
30 to 34..........................               4672               4939
35 to 40..........................               4575               4939
41 to 47..........................               4575               5109
48 to 55..........................               4624               5109
56 to 64..........................               4624               5109
65 to 74..........................               4624               5231
75 to 86..........................               4624               5352
87 to 99..........................               4624               5352
100 to 114........................               4672               5631
115 to 131........................               5109               5704
Over 131..........................                (*)                (*)
------------------------------------------------------------------------
* No data submitted.


[59 FR 48797, Sept. 23, 1994, as amended at 59 FR 49564, Sept. 28, 1994]

               Appendix D3 to Part 305--Water Heaters--Oil

                           [Range Information]
------------------------------------------------------------------------
             Capacity                 Range of estimated annual energy
-----------------------------------       consumption (gallons/yr.)
                                   -------------------------------------
         First hour rating                 Low                High
------------------------------------------------------------------------
Less than 65......................                (*)                (*)
65 to 74..........................                (*)                (*)

[[Page 286]]

 
75 to 86..........................                (*)                (*)
87 to 99..........................                (*)                (*)
100 to 114........................                177                200
115 to 131........................                171                212
Over 131..........................                180                180
------------------------------------------------------------------------
* No data submitted.


[59 FR 48797, Sept. 23, 1994, as amended at 59 FR 49564, Sept. 28, 1994]

       Appendix D4 to Part 305--Water Heaters--Instantaneous--Gas

                                                Range Information
----------------------------------------------------------------------------------------------------------------
                                                                 Range of estimated annual energy consumption
                                                                         (therms/yr. and gallons/yr.)
                                                             ---------------------------------------------------
   Capacity (maximum flow rate); gallons per minute (gpm)      Natural gas therms/yr.      Propane gallons/yr.
                                                             ---------------------------------------------------
                                                                  Low          High         Low          High
----------------------------------------------------------------------------------------------------------------
Under 1.00..................................................          233          233          256          256
1.00 to 2.00................................................          230          234          252          256
2.01 to 3.00................................................          188          218          206          239
Over 3.00...................................................          187          238          197          260
----------------------------------------------------------------------------------------------------------------

                            Cost Information

    When the above ranges of comparability are used on EnergyGuide 
labels for instantaneous water heaters, the estimated annual operating 
cost disclosure appearing in the box at the bottom of the labels must be 
derived using the 1999 Representative Average Unit Costs for natural gas 
(68.8[cent] per therm) and propane (77[cent] per gallon), and the text 
below the box must identify the costs as such.

[64 FR 71021, Dec. 20, 1999]

            Appendix D5 to Part 305--Water Heaters--Heat Pump

                           [Range Information]
------------------------------------------------------------------------
                                      Range of estimated annual energy
                                            consumption (KWh/Yr.)
    Capacity: First hour rating    -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Less than 21......................                (*)                (*)
21 to 24..........................                (*)                (*)
25 to 29..........................                (*)                (*)
30 to 34..........................                (*)                (*)
35 to 40..........................                (*)                (*)
41 to 47..........................                (*)                (*)
48 to 55..........................                (*)                (*)
56 to 64..........................                (*)                (*)
65 to 74..........................                (*)                (*)
75 to 86..........................                (*)                (*)
87 to 99..........................                (*)                (*)
100 to 114........................                (*)                (*)
115 to 131........................                (*)                (*)
Over 131..........................                (*)               (*)
------------------------------------------------------------------------
* No data submitted.


[67 FR 42479, June 24, 2002]

[[Page 287]]

              Appendix E to Part 305--Room Air Conditioners

                           [Range Information]
------------------------------------------------------------------------
                                      Range of Energy Efficiency Ratios
   Manufacturer's rated cooling                    (EERs)
       capacity in Btu's/yr.       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Without Reverse Cycle and with
 Louvered Sides:
    Less than 6,000 Btu...........                8.0               10.0
    6,000 to 7,999 Btu............                8.5               10.3
    8,000 to 13,999 Btu...........                9.0               12.0
    14,000 to 19,999 Btu..........                8.8               10.7
    20,000 and more Btu...........                8.2               10.0
Without Reverse Cycle and without
 Louvered Sides:
    Less than 6,000 Btu...........                (*)                (*)
    6,000 to 7,999................                8.5                9.6
    8,000 to 13,999 Btu...........                8.5                9.2
    14,000 to 19,999 Btu..........                (*)                (*)
    20,000 and more Btu...........                (*)                (*)
With Reverse Cycle and with                       8.5               11.5
 Louvered Sides...................
With Reverse Cycle, without                       8.0                9.0
 Louvered Sides...................
------------------------------------------------------------------------
* No data submitted for units meeting Federal Minimum Efficiency
  Standards effective January 1, 1990.


[60 FR 56949, Nov. 13, 1995]

                 Appendix F to Part 305--Clothes Washers

                            Range Information

    ``Compact'' includes all household clothes washers with a tub 
capacity of less than 1.6 cu. ft. or 13 gallons of water.
    ``Standard'' includes all household clothes washers with a tub 
capacity of 1.6 cu. ft or 13 gallons of water or more.

------------------------------------------------------------------------
                                      Range of estimated annual  energy
                                           consumption  (kWh/yr.)
             Capacity              -------------------------------------
                                           Low                High
------------------------------------------------------------------------
Compact...........................                576                607
Standard..........................                177               1298
------------------------------------------------------------------------

                            Cost Information

    When the above ranges of comparability are used on EnergyGuide 
labels for clothes washers, the estimated annual operating cost 
disclosures appearing in the box at the bottom of the labels must be 
derived using the 2000 Representative Average Unit Costs for electricity 
(8.03[cent] per kilo Watt-hour) and natural gas (68.8[cent] per therm), 
and the text below the box must identify the costs as such.

[65 FR 30352, May. 11, 2000]

    Effective Date Note: At 68 FR 65834, Nov. 24, 2003, appendix F to 
part 305 was removed, effective February 23, 2004.

            Appendix F1 to Part 305--Standard Clothes Washers

                            Range Information

    ``Standard'' includes all household clothes washers with a tub 
capacity of 1.6 cu. ft or 13 gallons of water or more.

------------------------------------------------------------------------
                                                            Range of
                                                        estimated annual
                                                             energy
                       Capacity                            consumption
                                                            (kWh/yr.)
                                                       -----------------
                                                          Low      High
------------------------------------------------------------------------
Standard..............................................      177     1298
------------------------------------------------------------------------

                            Cost Information

    When the above range of comparability is used on EnergyGuide labels 
for standard clothes washers, the estimated annual operating cost 
disclosure appearing in the box at

[[Page 288]]

the bottom of the labels must be derived using the 2000 Representative 
Average Unit Costs for electricity (8.03[cent] per kiloWatt-hour) and 
natural gas (68.8.6[cent] per therm), and the text below the box must 
identify the costs as such.

            Appendix F2 to Part 305--Compact Clothes Washers

                            Range Information

    ``Compact'' includes all household clothes washers with a tub 
capacity of less than 1.6 cu. ft. or 13 gallons of water.

------------------------------------------------------------------------
                                                            Range of
                                                        estimated annual
                                                             energy
                       Capacity                            consumption
                                                            (kWh/yr.)
                                                       -----------------
                                                          Low      High
------------------------------------------------------------------------
Compact...............................................      350      653
------------------------------------------------------------------------

                            Cost Information

    When the above range of comparability is used on EnergyGuide labels 
for compact clothes washers, the estimated annual operating cost 
disclosure appearing in the box at the bottom of the labels must be 
derived using the 2003 Representative Average Unit Costs for electricity 
(8.41[cent] per kiloWatt-hour) and natural gas (81.6[cent] per therm), 
and the text below the box must identify the costs as such.

                 Appendix G1 to Part 305--Furnaces--Gas

                         [1. Range Information]
------------------------------------------------------------------------
                                      Range of annual fuel utilization
   Manufacturer's rated heating             efficiencies (AFUE's)
      capacities (Btu's/hr.)       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
All Capacities....................                 78               96.6
------------------------------------------------------------------------


                 [2. Yearly Cost Information: Cost Grid]
------------------------------------------------------------------------
                                                        Btu heat loss of
              Cost per kilowatt hour \1\                home (see chart
                                                             below)
------------------------------------------------------------------------
 4[cent].............................................  .................
 6[cent].............................................  .................
 8[cent].............................................  .................
10[cent].............................................  .................
12[cent].............................................  .................
14[cent].............................................  .................
------------------------------------------------------------------------
\1\ For charts on natural gas, oil and propane gas, substitute the
  following cost figures:
a. Cost per therm--10[cent], 20[cent], 30[cent], 40[cent], 50[cent],
  60[cent].
b. Cost per gallon (oil)--76[cent], 79[cent], 82[cent], 85[cent],
  88[cent], 91[cent], 94[cent], 97[cent], $1.00.
c. Cost per gallon (propane)--35[cent], 40[cent], 45[cent], 50[cent],
  55[cent], 60[cent].

    The following table shows the heat loss values (in thousand Btu's/
hr.) to be used in the cost grid:

                                                [Heat Loss Table]
----------------------------------------------------------------------------------------------------------------
                                                                      Design heat loss
 Manufacturers rated heat output of model to be labeled (Btu's per     of model to be    Heat loss values to be
                               hour)                                   labeled (1,000    used on the grid (1,000
                                                                      Btu's per hour)        Btu's per hour)
----------------------------------------------------------------------------------------------------------------
 5,000 to 10,000...................................................                  5                         5
 11,000 to 16,000..................................................                 10                     5, 10
 17,000 to 25,000..................................................                 15                    10, 15
 26,000 to 42,000..................................................                 20                15, 20, 25
 43,000 to 59,000..................................................                 30            25, 30, 35, 40
 60,000 to 76,000..................................................                 40            35, 40, 45, 50
 77,000 to 93,000..................................................                 50            40, 45, 50, 60
 94,000 to 110,000.................................................                 60            50, 60, 70, 80
111,000 to 127,000.................................................                 70            60, 70, 80, 90
128,000 to 144,000.................................................                 80           70, 80, 90, 100
145,000 to 161,000.................................................                 90     80, 90, 100, 110, 120
162,000 to 178,000.................................................                100    90, 100, 110, 120, 130
179,000 to 195,000.................................................                110   100, 110, 120, 130, 140
196,000 and over...................................................                130   120, 130, 140, 150, 160
----------------------------------------------------------------------------------------------------------------


[[Page 289]]

    Beside each cost in the cost grid, and below the appropriate heat 
loss value taken from the heat loss table, place the cost estimate for 
the model being labeled using the table costs in place of the national 
average cost and using the heat loss values in place of the design heat 
loss used in the table with the national average cost.

[59 FR 34042, July 1, 1994, as amended at 59 FR 48798, Sept. 23, 1994]

               Appendix G2 to Part 305--Furnaces--Electric

                         [1. Range Information]
------------------------------------------------------------------------
                                      Ranges of annual fuel utilization
   Manufacturer's rated heating             efficiencies (AFUE's)
      capacities (Btu's/hr.)       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
All Capacities....................                100                100
------------------------------------------------------------------------


                 [2. Yearly Cost Information: Cost Grid]
------------------------------------------------------------------------
                                                        Btu heat loss of
              Cost per kilowatt hour \1\                home (see chart
                                                             below)
------------------------------------------------------------------------
4[cent]..............................................  .................
6[cent]..............................................  .................
8[cent]..............................................  .................
10[cent].............................................  .................
12[cent].............................................  .................
14[cent].............................................  .................
------------------------------------------------------------------------
\1\ For charts on natural gas, oil and propane gas, substitute the
  following cost figures:
a. Cost per therm--10[cent], 20[cent], 30[cent], 40[cent], 50[cent],
  60[cent].
b. Cost per gallon (oil)--76[cent], 79[cent], 82[cent], 85[cent],
  88[cent], 91[cent], 94[cent], 97[cent], $1.00.
c. Cost per gallon (propane)--35[cent], 40[cent], 45[cent], 50[cent],
  55[cent], 60[cent].

    The following table shows the heat loss values (in thousand Btu's/
hr.) to be used in the cost grid:

                                                [Heat Loss Table]
----------------------------------------------------------------------------------------------------------------
                                                                      Design heat loss
 Manufacturers' rated heat output of model to be labeled (Btu's per    of model to be    Heat loss values to be
                               hour)                                   labeled (1,000    used on the grid (1,000
                                                                      Btu's per hour)        Btu's per hour)
----------------------------------------------------------------------------------------------------------------
5,000 to 10,000....................................................                  5                         5
11,000 to 16,000...................................................                 10                     5, 10
17,000 to 25,000...................................................                 15                    10, 15
26,000 to 42,000...................................................                 20                15, 20, 25
43,000 to 59,000...................................................                 30            25, 30, 35, 40
60,000 to 76,000...................................................                 40            35, 40, 45, 50
77,000 to 93,000...................................................                 50            40, 45, 50, 60
94,000 to 110,000..................................................                 60            50, 60, 70, 80
111,000 to 127,000.................................................                 70            60, 70, 80, 90
128,000 to 144,000.................................................                 80           70, 80, 90, 100
145,000 to 161,000.................................................                 90     80, 90, 100, 110, 120
162,000 to 178,000.................................................                100    90, 100, 110, 120, 130
179,000 to 195,000.................................................                110   100, 110, 120, 130, 140
196,000 and over...................................................                130   120, 130, 140, 150, 160
----------------------------------------------------------------------------------------------------------------

    Beside each cost in the cost grid, and below the appropriate heat 
loss value taken from the heat loss table, place the cost estimate for 
the model being labeled using the table costs in place of the national 
average cost and using the heat loss values in place of the design heat 
loss used in the table with the national average cost.

[59 FR 34042, July 1, 1994, as amended at 59 FR 48798, Sept. 23, 1994]

                 Appendix G3 to Part 305--Furnaces--Oil

                         [1. Range Information]
------------------------------------------------------------------------
                                      Range of annual fuel utilization
   Manufacturer's rated heating             efficiencies (AFUE's)
      capacities (Btu's/hr.)       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
All Capacities....................                 78               86.7
------------------------------------------------------------------------


[[Page 290]]


                 [2. Yearly Cost Information: Cost Grid]
------------------------------------------------------------------------
                                                        Btu heat loss of
              Cost per kilowatt hour\1\                 home (see chart
                                                             below)
------------------------------------------------------------------------
4[cent]..............................................  .................
6[cent]..............................................  .................
8[cent]..............................................  .................
10[cent].............................................  .................
12[cent].............................................  .................
14[cent].............................................  .................
------------------------------------------------------------------------
\1\ For charts on natural gas, oil and propane gas, substitute the
  following cost figures:
a. Cost per therm--10[cent], 20[cent], 30[cent], 40[cent], 50[cent],
  60[cent].
b. Cost per gallon (oil)--76[cent], 79[cent], 82[cent], 85[cent],
  88[cent], 91[cent], 94[cent], 97[cent], $1.00.
c. Cost per gallon (propane)--35[cent], 40[cent], 45[cent], 50[cent],
  55[cent], 60[cent].

    The following table shows the heat loss values (in thousand Btu's/
hr.) to be used in the cost grid:

                                                [Heat Loss Table]
----------------------------------------------------------------------------------------------------------------
                                                                      Design heat loss
 Manufacturers' rated heat output of model to be labeled (Btu's per    of model to be    Heat loss values to be
                               hour)                                   labeled (1,000    used on the grid (1,000
                                                                      Btu's per hour)        Btu's per hour)
----------------------------------------------------------------------------------------------------------------
5,000 to 10,000....................................................                  5                         5
11,000 to 16,000...................................................                 10                     5, 10
17,000 to 25,000...................................................                 15                    10, 15
26,000 to 42,000...................................................                 20                15, 20, 25
43,000 to 59,000...................................................                 30            25, 30, 35, 40
60,000 to 76,000...................................................                 40            35, 40, 45, 50
77,000 to 93,000...................................................                 50            40, 45, 50, 60
94,000 to 110,000..................................................                 60            50, 60, 70, 80
111,000 to 127,000.................................................                 70            60, 70, 80, 90
128,000 to 144,000.................................................                 80           70, 80, 90, 100
145,000 to 161,000.................................................                 90     80, 90, 100, 110, 120
162,000 to 178,000.................................................                100    90, 100, 110, 120, 130
179,000 to 195,000.................................................                110   100, 110, 120, 130, 140
196,000 and over...................................................                130   120, 130, 140, 150, 160
----------------------------------------------------------------------------------------------------------------

    Beside each cost in the cost grid, and below the appropriate heat 
loss value taken from the heat loss table, place the cost estimate for 
the model being labeled using the table costs in place of the national 
average cost and using the heat loss values in place of the design heat 
loss used in the table with the national average cost.

[59 FR 34042, July 1, 1994, as amended at 59 FR 48798, Sept. 23, 1994]

              Appendix G4 to Part 305--Mobile Home Furnaces

                         [1. Range Information]
------------------------------------------------------------------------
                                      Range of annual fuel utilization
   Manufacturer's rated heating             efficiencies (AFUE's)
      capacities (Btu's/hr.)       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
All Capacities....................                 75               83.2
------------------------------------------------------------------------


                 [2. Yearly Cost Information: Cost Grid]
------------------------------------------------------------------------
                                                        Btu heat loss of
              Cost per kilowatt hour \1\                home (see chart
                                                             below)
------------------------------------------------------------------------
4[cent]..............................................  .................
6[cent]..............................................  .................
8[cent]..............................................  .................
10[cent].............................................  .................
12[cent].............................................  .................
14[cent].............................................  .................
------------------------------------------------------------------------
\1\ For charts on natural gas, oil and propane gas, substitute the
  following cost figures:
a. Cost per therm--10[cent], 20[cent], 30[cent], 40[cent], 50[cent],
  60[cent].
b. Cost per gallon (oil)--76[cent], 79[cent], 82[cent], 85[cent],
  88[cent], 91[cent], 94[cent], 97[cent], $1.00.
c. Cost per gallon (propane)--35[cent], 40[cent], 45[cent], 50[cent],
  55[cent], 60[cent].

    The following table shows the heat loss values (in thousand Btu's/
hr.) to be used in the cost grid:

[[Page 291]]



                                                [Heat Loss Table]
----------------------------------------------------------------------------------------------------------------
                                                                      Design heat loss
 Manufacturers' rated heat output of model to be labeled (Btu's per    of model to be    Heat loss values to be
                               hour)                                   labeled (1,000    used on the grid (1,000
                                                                      Btu's per hour)        Btu's per hour)
----------------------------------------------------------------------------------------------------------------
5,000 to 10,000....................................................                  5                         5
5,000 to 10,000....................................................                  5                         5
11,000 to 16,000...................................................                 10                     5, 10
17,000 to 25,000...................................................                 15                    10, 15
26,000 to 42,000...................................................                 20                15, 20, 25
43,000 to 59,000...................................................                 30            25, 30, 35, 40
60,000 to 76,000...................................................                 40            35, 40, 45, 50
77,000 to 93,000...................................................                 50            40, 45, 50, 60
94,000 to 110,000..................................................                 60            50, 60, 70, 80
111,000 to 127,000.................................................                 70            60, 70, 80, 90
128,000 to 144,000.................................................                 80           70, 80, 90, 100
145,000 to 161,000.................................................                 90     80, 90, 100, 110, 120
162,000 to 178,000.................................................                100    90, 100, 110, 120, 130
179,000 to 195,000.................................................                110   100, 110, 120, 130, 140
196,000 and over...................................................                130   120, 130, 140, 150, 160
----------------------------------------------------------------------------------------------------------------

    Beside each cost in the cost grid, and below the appropriate heat 
loss value taken from the heat loss table, place the cost estimate for 
the model being labeled using the table costs in place of the national 
average cost and using the heat loss values in place of the design heat 
loss used in the table with the national average cost.

[59 FR 34042, July 1, 1994, as amended at 59 FR 48798, Sept. 23, 1994]

          Appendix G5 to Part 305--Boilers--Gas (Except Steam)

                         [1. Range Information]
------------------------------------------------------------------------
                                      Range of annual fuel utilization
   Manufacturer's rated heating             efficiencies (AFUE's)
      capacities (Btu's/hr.)       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
All Capacities....................                 80               90.6
------------------------------------------------------------------------


                 [2. Yearly Cost Information: Cost Grid]
------------------------------------------------------------------------
                                                        Btu heat loss of
              Cost per kilowatt hour \1\                home (see chart
                                                             below)
------------------------------------------------------------------------
4[cent]..............................................  .................
6[cent]..............................................  .................
8[cent]..............................................  .................
10[cent].............................................  .................
12[cent].............................................  .................
14[cent].............................................  .................
------------------------------------------------------------------------
\1\ For charts on natural gas, oil and propane gas, substitute the
  following cost figures:
a. Cost per therm--10[cent], 20[cent], 30[cent], 40[cent], 50[cent],
  60[cent].
b. Cost per gallon (oil)--76[cent], 79[cent], 82[cent], 85[cent],
  88[cent], 91[cent], 94[cent], 97[cent], $1.00.
c. Cost per gallon (propane)--35[cent], 40[cent], 45[cent], 50[cent],
  55[cent], 60[cent].

    The following table shows the heat loss values (in thousand Btu's/
hr.) to be used in the cost grid:

                                                [Heat Loss Table]
----------------------------------------------------------------------------------------------------------------
                                                                      Design heat loss
 Manufacturers' rated heat output of model to be labeled (Btu's per    of model to be    Heat loss values to be
                               hour)                                   labeled (1,000    used on the grid (1,000
                                                                      Btu's per hour)        Btu's per hour)
----------------------------------------------------------------------------------------------------------------
5,000 to 10,000....................................................                  5                         5
11,000 to 16,000...................................................                 10                     5, 10
17,000 to 25,000...................................................                 15                    10, 15
26,000 to 42,000...................................................                 20                15, 20, 25
43,000 to 59,000...................................................                 30            25, 30, 35, 40
60,000 to 76,000...................................................                 40            35, 40, 45, 50
77,000 to 93,000...................................................                 50            40, 45, 50, 60
94,000 to 110,000..................................................                 60            50, 60, 70, 80
111,000 to 127,000.................................................                 70            60, 70, 80, 90
128,000 to 144,000.................................................                 80           70, 80, 90, 100
145,000 to 161,000.................................................                 90     80, 90, 100, 110, 120

[[Page 292]]

 
162,000 to 178,000.................................................                100    90, 100, 110, 120, 130
179,000 to 195,000.................................................                110   100, 110, 120, 130, 140
196,000 and over...................................................                130   120, 130, 140, 150, 160
----------------------------------------------------------------------------------------------------------------

    Beside each cost in the cost grid, and below the appropriate heat 
loss value taken from the heat loss table, place the cost estimate for 
the model being labeled using the table costs in place of the national 
average cost and using the heat loss values in place of the design heat 
loss used in the table with the national average cost.

[59 FR 34042, July 1, 1994, as amended at 59 FR 48798, Sept. 23, 1994]

              Appendix G6 to Part 305--Boilers--Gas (Steam)

                         [1. Range Information]
------------------------------------------------------------------------
                                      Range of annual fuel utilization
   Manufacturer's rated heating             efficiencies (AFUE's)
      capacities (Btu's/hr.)       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
All Capacities....................                 75               83.5
------------------------------------------------------------------------


                 [2. Yearly Cost Information: Cost Grid]
------------------------------------------------------------------------
                                                        Btu heat loss of
              Cost per kilowatt hour \1\                home (see chart
                                                             below)
------------------------------------------------------------------------
4[cent]..............................................  .................
6[cent]..............................................  .................
8[cent]..............................................  .................
10[cent].............................................  .................
12[cent].............................................  .................
14[cent].............................................  .................
------------------------------------------------------------------------
\1\ For charts on natural gas, oil and propane gas, substitute the
  following cost figures:
a. Cost per therm--10[cent], 20[cent], 30[cent], 40[cent], 50[cent],
  60[cent].
b. Cost per gallon (oil)--76[cent], 79[cent], 82[cent], 85[cent],
  88[cent], 91[cent], 94[cent],[cent], 97[cent], $1.00.
c. Cost per gallon (propane)--35[cent], 40[cent], 45[cent], 50[cent],
  55[cent], 60[cent].

    The following table shows the heat loss values (in thousand Btu's/
hr.) to be used in the cost grid:

                                                [Heat Loss Table]
----------------------------------------------------------------------------------------------------------------
                                                                      Design heat loss
 Manufacturers' rated heat output of model to be labeled (Btu's per    of model to be    Heat loss values to be
                               hour)                                   labeled (1,000    used on the grid (1,000
                                                                      Btu's per hour)        Btu's per hour)
----------------------------------------------------------------------------------------------------------------
5,000 to 10,000....................................................                  5                         5
11,000 to 16,000...................................................                 10                     5, 10
17,000 to 25,000...................................................                 15                    10, 15
26,000 to 42,000...................................................                 20                15, 20, 25
43,000 to 59,000...................................................                 30            25, 30, 35, 40
60,000 to 76,000...................................................                 40            35, 40, 45, 50
77,000 to 93,000...................................................                 50            40, 45, 50, 60
94,000 to 110,000..................................................                 60            50, 60, 70, 80
111,000 to 127,000.................................................                 70            60, 70, 80, 90
128,000 to 144,000.................................................                 80           70, 80, 90, 100
145,000 to 161,000.................................................                 90     80, 90, 100, 110, 120
162,000 to 178,000.................................................                100    90, 100, 110, 120, 130
179,000 to 195,000.................................................                110   100, 110, 120, 130, 140
196,000 and over...................................................                130   120, 130, 140, 150, 160
----------------------------------------------------------------------------------------------------------------

    Beside each cost in the cost grid, and below the appropriate heat 
loss value taken from the heat loss table, place the cost estimate for 
the model being labeled using the table costs in place of the national 
average cost and using the heat loss values in place of the design heat 
loss used in the table with the national average cost.

[59 FR 34042, July 1, 1994, as amended at 59 FR 48798, Sept. 23, 1994]

[[Page 293]]

                  Appendix G7 to Part 305--Boilers--Oil

                         [1. Range Information]
------------------------------------------------------------------------
                                      Range of annual fuel utilization
   Manufacturer's rated heating             efficiencies (AFUE's)
      capacities (Btu's/hr.)       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
All Capacities....................                 80               88.7
------------------------------------------------------------------------


                 [2. Yearly Cost Information: Cost Grid]
------------------------------------------------------------------------
                                                        Btu heat loss of
              Cost per kilowatt hour \1\                home (see chart
                                                             below)
------------------------------------------------------------------------
4[cent]..............................................  .................
6[cent]..............................................  .................
8[cent]..............................................  .................
10[cent].............................................  .................
12[cent].............................................  .................
14[cent].............................................  .................
------------------------------------------------------------------------
\1\ For charts on natural gas, oil and propane gas, substitute the
  following cost figures:
a. Cost per therm--10[cent], 20[cent], 30[cent], 40[cent], 50[cent],
  60[cent].
b. Cost per gallon (oil)--76[cent], 79[cent], 82[cent], 85[cent],
  88[cent], 91[cent], 94[cent], 97[cent], $1.00.
c. Cost per gallon (propane)--35[cent], 40[cent], 45[cent], 50[cent],
  55[cent], 60[cent].

    The following table shows the heat loss values (in thousand Btu's/
hr.) to be used in the cost grid:

                                                [Heat Loss Table]
----------------------------------------------------------------------------------------------------------------
                                                                      Design heat loss
 Manufacturers' rated heat output of model to be labeled (Btu's per    of model to be    Heat loss values to be
                               hour)                                   labeled (1,000   used on the grid (1,000)
                                                                      Btu's per hour)        Btu's per hour)
----------------------------------------------------------------------------------------------------------------
5,000 to 10,000....................................................                  5                         5
11,000 to 16,000...................................................                 10                     5, 10
17,000 to 25,000...................................................                 15                    10, 15
26,000 to 42,000...................................................                 20                15, 20, 25
43,000 to 59,000...................................................                 30            25, 30, 35, 40
60,000 to 76,000...................................................                 40            35, 40, 45, 50
77,000 to 93,000...................................................                 50            40, 45, 50, 60
94,000 to 110,000..................................................                 60            50, 60, 70, 80
111,000 to 127,000.................................................                 70            60, 70, 80, 90
128,000 to 144,000.................................................                 80           70, 80, 90, 100
145,000 to 161,000.................................................                 90     80, 90, 100, 110, 120
162,000 to 178,000.................................................                100    90, 100, 110, 120, 130
179,000 to 195,000.................................................                110   100, 110, 120, 130, 140
196,000 and over...................................................                130   120, 130, 140, 150, 160
----------------------------------------------------------------------------------------------------------------

    Beside each cost in the cost grid, and below the appropriate heat 
loss value taken from the heat loss table, place the cost estimate for 
the model being labeled using the table costs in place of the national 
average cost and using the heat loss values in place of the design heat 
loss used in the table with the national average cost.

[59 FR 34042, July 1, 1994, as amended at 59 FR 48798, Sept. 23, 1994]

               Appendix G8 to Part 305--Boilers--Electric

                         [1. Range Information]
------------------------------------------------------------------------
                                      Range of annual fuel utilization
   Manufacturer's rated heating             efficiencies (AFUE's)
      capacities (Btu's/hr.)       -------------------------------------
                                           Low                High
------------------------------------------------------------------------
All Capacities....................                100                100
------------------------------------------------------------------------


                 [2. Yearly Cost Information: Cost Grid]
------------------------------------------------------------------------
                                                        Btu heat loss of
              Cost per kilowatt hour \1\                home (see chart
                                                             below)
------------------------------------------------------------------------
4[cent]..............................................  .................
6[cent]..............................................  .................
8[cent]..............................................  .................

[[Page 294]]

 
10[cent].............................................  .................
12[cent].............................................  .................
14[cent].............................................  .................
------------------------------------------------------------------------
\1\ For charts on natural gas, oil and propane gas, substitute the
  following cost figures:
a. Cost per therm--10[cent], 20[cent], 30[cent], 40[cent], 50[cent],
  60[cent].
b. Cost per gallon (oil)--76[cent], 79[cent], 82[cent], 85[cent],
  88[cent], 91[cent], 94[cent], 97[cent], $1.00.
c. Cost per gallon (propane)--35[cent], 40[cent], 45[cent], 50[cent],
  55[cent], 60[cent].

    The following table shows the heat loss values (in thousand Btu's/
hr.) to be used in the cost grid:

                                                [Heat Loss Table]
----------------------------------------------------------------------------------------------------------------
                                                                      Design heat loss
 Manufacturers' rated heat output of model to be labeled (Btu's per    of model to be    Heat loss values to be
                               hour)                                   labeled (1,000   used on the grid (1,000)
                                                                      Btu's per hour)        Btu's per hour)
----------------------------------------------------------------------------------------------------------------
5,000 to 10,000....................................................                  5                         5
11,000 to 16,000...................................................                 10                     5, 10
17,000 to 25,000...................................................                 15                    10, 15
26,000 to 42,000...................................................                 20                15, 20, 25
43,000 to 59,000...................................................                 30            25, 30, 35, 40
60,000 to 76,000...................................................                 40            35, 40, 45, 50
77,000 to 93,000...................................................                 50            40, 45, 50, 60
94,000 to 110,000..................................................                 60            50, 60, 70, 80
111,000 to 127,000.................................................                 70            60, 70, 80, 90
128,000 to 144,000.................................................                 80           70, 80, 90, 100
145,000 to 161,000.................................................                 90     80, 90, 100, 110, 120
162,000 to 178,000.................................................                100    90, 100, 110, 120, 130
179,000 to 195,000.................................................                110   100, 110, 120, 130, 140
196,000 and over...................................................                130   120, 130, 140, 150, 160
----------------------------------------------------------------------------------------------------------------

    Beside each cost in the cost grid, and below the appropriate heat 
loss value taken from the heat loss table, place the cost estimate for 
the model being labeled using the table costs in place of the national 
average cost and using the heat loss values in place of the design heat 
loss used in the table with the national average cost.

[59 FR 34042, July 1, 1994, as amended at 59 FR 48798, Sept. 23, 1994]

  Appendix H to Part 305--Cooling Performance and Cost for Central Air 
                              Conditioners

                          1. Range Information:
------------------------------------------------------------------------
                                               Range of SEER's
   Manufacturer's rated cooling    -------------------------------------
       capacity (Btu's/hr.)                Low                High
------------------------------------------------------------------------
       Single Package Units
 
Central Air Conditioners (Cooling                9.70              16.05
 Only): All capacities............
Heat Pumps (Cooling Function): All               9.70              15.60
 capacities.......................
 
        Split System Units
 
Central Air Conditioners (Cooling               10.00              17.00
 Only): All capacities............
Heat Pumps (Cooling Function): All              10.00              16.40
 capacities.......................
------------------------------------------------------------------------

                       2. Yearly Cost Information:

    For each model, display three annual operating costs, based on 
8.41[cent] per kilowatt hour, rounded to the nearest $10, corresponding 
to the three building heat gains from the chart below:

------------------------------------------------------------------------
                                    Building heat gain (in 1000's BTU's/
   Manufacturers rated cooling                      hr)
        capacity (BTU/hr)         --------------------------------------
 
------------------------------------------------------------------------
Up to 9,000......................            3            6            9
9,100 to 15,000..................            9           12           15
15,100 to 21,000.................           15           18           21
21,100 to 27,000.................           21           24           27
27,200 to 33,000.................           27           30           33

[[Page 295]]

 
33,200 to 39,000.................           33           36           39
39,500 to 45,000.................           39           42           45
45,500 to 51,000.................           45           48           51
51,500 to 57,000.................           51           54           57
57,500 to 63,000.................           57           60           63
63,500 and over..................           63           66           69
------------------------------------------------------------------------

    The values of building heat gain are to be considered cooling 
capacities in the calculation of annual operating cost in accordance 
with 10 CFR 430.22 (m)(1)(i).
    Include the following note on every fact sheet page that lists 
annual operating costs.

    Note: These figures are based on U.S. Government standard tests and 
are for national averages of 1000 cooling load hours and 8.41[cent]/KWH. 
Your cost will vary depending on your local energy rate and how you use 
the product. A method for estimating your cost of operation is given 
[direct user to location].

    The methodology referred to in the note is provided below. This 
information shall be included a least once in all compendiums of fact 
sheets. If separate fact sheets are prepared for individual distribution 
to consumers, this methodology must be provided on or with the unbound 
fact sheets.

                    How To Estimate Your Cooling Cost

    To estimate your actual cost of operation, find your cooling load 
hours from the map, your average annual operating cost from the National 
Average Annual Operating Cost Table, and determine your electrical rate 
in cents per kilowatt hour (KWH) from your electric bill.
[GRAPHIC] [TIFF OMITTED] TR11AU03.041

    Example: If your cooling load hours = 1500, and your electric rate 
is 12.62[cent]/KWH and your listed annual operating cost is $100, then:,
Your estimated cost = $100 x 1,500 / 1,000 x 12.62[cent] / 8.41[cent]
Your estimated cost = $100 x 1.5 x 1.5 = $225
Your estimated cost = $225

[[Page 296]]

[GRAPHIC] [TIFF OMITTED] TC29SE91.014


[[Page 297]]


[GRAPHIC] [TIFF OMITTED] TC29SE91.015


[[Page 298]]



                            National Average Annual Operating Cost Table ($ per year)
----------------------------------------------------------------------------------------------------------------
                                                                      Building Heat Gain (BTU/hour)
                         Model                          --------------------------------------------------------
                                                               27,000             30,000             33,000
----------------------------------------------------------------------------------------------------------------
XXX/C1.................................................               $200               $220               $240
XXX/C2.................................................               $200               $220               $240
XXX/C3.................................................               $190               $210               $230
XXX/C6.................................................               $190               $210               $230
----------------------------------------------------------------------------------------------------------------
 Note: These figures are based on U.S. Goverment standard tests and are for national averages of 1000 cooling
  load hours and 8.41[cent]/KWH. Your cost will vary depending on your local energy rate and how you use the
  product. A method for estimating your cost of operation is provided on page 2 of this fact sheet.

                    How To Estimate Your Cooling Cost

    To estimate your actual cost of operation, find your actual cooling 
load hours from the map, your average annual operating cost from the 
National Average Annual Operating Cost Table, and determine your 
electrical rate in cents per kilowatt hour (KWH) from your electrical 
bill.
[GRAPHIC] [TIFF OMITTED] TR11AU03.041

    Example: If your cooling load hours are 1500, and your electric rate 
is 12.62[cent]/KWH, and your listed annual operating cost is $100, then:
Your estimated cost = $100 x 1,500 / 1,000 x 12.62[cent]/ 8.41[cent]
Your estimated cost = $100 x 1.5 x 1.5 = $225
Your estimated cost = $225

                  (This is page 2 of sample fact sheet)

[53 FR 19729, May 27, 1988, as amended at 54 FR 53318, Dec. 28, 1989; 55 
FR 43093, Oct. 26, 1990; 56 FR 46728, Sept. 16, 1991; 57 FR 44332, Sept. 
25, 1992; 59 FR 34049, July 1, 1994; 59 FR 39951 and 39952, Aug. 5, 
1994; 60 FR 56949, Nov. 13, 1995; 61 FR 48622, Sept. 16, 1996; 62 FR 
44891, Aug. 25, 1997; 63 FR 66431, Dec. 2, 1998; 64 FR 926, Jan. 6, 
1999; 64 FR 71021, Dec. 20, 1999; 65 FR 53166, Sept. 1, 2000; 66 FR 
49531, Sept. 28, 2001; 66 FR 57872, Nov. 19, 2001; 67 FR 58328, Sept. 
16, 2002; 68 FR 47451, Aug. 11, 2003]

  Appendix I to Part 305--Heating Performance and Cost for Central Air 
                              Conditioners

                          1. Range Information
------------------------------------------------------------------------
                                                       Range of HSPF's
 Manufacturer's rated heating capacity (Btu's/hr.) ---------------------
                                                       Low        High
------------------------------------------------------------------------
               Single Package Units
 
Heat Pumps (Heating Function): All capacities.....       6.60       8.20
 
                Split System Units
 
Heat Pumps (Heating Function): All capacities.....       6.80      10.20
------------------------------------------------------------------------
The HSPF shall be the Region IV value based on the appropriate average
  design heat loss from the table below.

                   2. Yearly Heating Cost Information:

    For each model, display a regional annual operating cost, based on 
8.41[cent] per kilowatt hour, rounded to the nearest $10, calculated 
according to 10 CFR 430.22(m)(3)(ii) for each region. The heat loss of 
home values given in the chart below are to be considered standardized 
design heating requirements in the calculation of annual operating cost 
in accordance with 10 CFR 430.22(m)(3)(ii).

----------------------------------------------------------------------------------------------------------------
                                                                     Average
                                                                   design heat
                        Capacity                          Region     loss (in   Heat loss of home values used on
                                                                      1000's     the grid (in 1000's Btu's/hr.)
                                                                    Btu's/hr.)
----------------------------------------------------------------------------------------------------------------
Up to 9,000............................................         1           10                             5, 10
                                                                2                                      5, 10, 15
                                                                3                                      5, 10, 15

[[Page 299]]

 
                                                                4                                     10, 15, 20
                                                                5                                     10, 15, 20
                                                                6                                      5, 10, 15
9,100 to 15,000........................................         1           20                         5, 10, 15
                                                                2                                  5, 10, 15, 20
                                                                3                                 10, 15, 20, 25
                                                                4                             10, 15, 20, 25, 30
                                                                5                             10, 15, 20, 25, 30
                                                                6                                  5, 10, 15, 20
15,100 to 21,000.......................................         1           25                        10, 15, 20
                                                                2                                 10, 15, 20, 25
                                                                3                                 15, 20, 25, 30
                                                                4                         15, 20, 25, 30, 35, 40
                                                                5                         15, 20, 25, 30, 35, 40
                                                                6                         10, 15, 20, 25, 30, 35
21,100 to 27,000.......................................         1           30                    10, 15, 20, 25
                                                                2                                 15, 20, 25, 30
                                                                3                         15, 20, 25, 30, 35, 40
                                                                4                         20, 25, 30, 35, 40, 50
                                                                5                     20, 25, 30, 35, 40, 50, 60
                                                                6                         10, 15, 20, 25, 30, 35
21,100 to 27,000.......................................         1           30                    10, 15, 20, 25
                                                                2                                 15, 20, 25, 30
                                                                3                         15, 20, 25, 30, 35, 40
                                                                4                         20, 25, 30, 35, 40, 50
                                                                5                     20, 25, 30, 35, 40, 50, 60
                                                                6                         15, 20, 25, 30, 35, 40
27,100 to 33,000.......................................         1           35                    15, 20, 25, 30
                                                                2                             20, 25, 30, 35, 40
                                                                3                         20, 25, 30, 35, 40, 50
                                                                4                         25, 30, 35, 40, 50, 60
                                                                5                 25, 30, 35, 40, 50, 60, 70, 80
                                                                6                     20, 25, 30, 35, 40, 50, 60
33,200 to 39,000.......................................         1           50                15, 20, 25, 30, 35
                                                                2                             25, 30, 35, 40, 50
                                                                3                             30, 35, 40, 50, 60
                                                                4                     35, 40, 50, 60, 70, 80, 90
                                                                5                     35, 40, 50, 60, 70, 80, 90
                                                                6                             25, 30, 35, 40, 50
39,500 to 45,000.......................................         1           60                20, 25, 30, 35, 40
                                                                2                         25, 30, 35, 40, 50, 60
                                                                3                             30, 35, 40, 50, 60
                                                                4                    40, 50, 60, 70, 80, 90, 100
                                                                5               40, 50, 60, 70, 80, 90, 100, 110
                                                                6                 25, 30, 35, 40, 50, 60, 70, 80
45,500 to 51,000.......................................         1           70                20, 25, 30, 35, 40
                                                                2                             30, 35, 40, 50, 60
                                                                3                         35, 40, 50, 60, 70, 80
                                                                4                   50, 60, 70, 80, 90, 100, 110
                                                                5                  50, 60, 70, 80, 90, 100, 110,
                                                                                                             130
                                                                6                30, 35, 40, 50, 60, 70, 80, 90,
                                                                                                   100, 110, 130
51,500 to 57,000.......................................         1           70                25, 30, 35, 40, 50
                                                                2                             35, 40, 50, 60, 70
                                                                3                         40, 50, 60, 70, 80, 90
                                                                4                   50, 60, 70, 80, 90, 100, 110
                                                                5                  50, 60, 70, 80, 90, 100 ,110,
                                                                                                             130
                                                                6                35, 40, 50, 60, 70, 80, 90, 100
57,500 to 63,000.......................................         1           80                25, 30, 35, 40, 50
                                                                2                             35, 40, 50, 60, 70
                                                                3                             50, 60, 70, 80, 90
                                                                4                       60, 70, 80, 90, 100, 110
                                                                5                  60, 70, 80, 90, 100, 110, 130
                                                                6                35, 40, 50, 60, 70, 80, 90, 100
63,500 and over........................................         1           90                30, 35, 40, 50, 60
                                                                2                             40, 50, 60, 70, 80
                                                                3                        50, 60, 70, 80, 90, 100
                                                                4                      70, 80, 90, 100, 110, 130
                                                                5                      70, 80, 90, 100, 110, 130
                                                                6                             40, 50, 60, 70, 80
----------------------------------------------------------------------------------------------------------------


[[Page 300]]

    Include the following note on every fact sheet page that lists 
annual operating costs.

    Note: These annual heating costs are based on U.S. Government 
standard tests and on a national average cost of electricity of 
8.41[cent]/KWH. Your cost will vary depending on your local energy rate 
and how you use the product. A method for estimating your cost of 
operation is given [direct user to location].

    The methodology referred to in the note is provided below. This 
information shall be included at least once in all compendiums of fact 
sheets. If separate fact sheets are prepared for individual distribution 
to consumers, this methodology must be provided on or with the unbound 
fact sheets.

                   How To Estimate Your Heating Costs

    To estimate your heating cost, determine your cost of electricity in 
cents per kilowatt hour (KWH) from your electric bill, your listed 
average annual heating cost from the National Average Annual Heating 
Cost Table, and use that number in the following equation:
[GRAPHIC] [TIFF OMITTED] TR11AU03.042

    Example: If your electric rate is 12.62[cent]/KWH and the annual 
heating cost listed in the chart is $200:
Your estimated cost = $200 x 12.62[cent]/8.41[cent]
Your estimated cost = $200 x 1.5 = $300
Your estimated cost = $300

[[Page 301]]

[GRAPHIC] [TIFF OMITTED] TC29SE91.016


[[Page 302]]


[GRAPHIC] [TIFF OMITTED] TC29SE91.017

    Note: These annual heating costs are based on U.S. Government 
standard tests and on a national average cost of electricity of 
8.41[cent]/KWH. Your cost will vary depending on your local energy rate 
and how you use the product. A method for estimating your cost of 
operation is given below.

[[Page 303]]

                    How To Estimate Your Heating Cost

    To estimate your heating cost, determine your cost of electricity in 
cents per kilowatt hour (KWH) from your electric bill, your listed 
average annual heating cost from the National Average Annual Heating 
Cost Table, and substitute that number in the following equation:
[GRAPHIC] [TIFF OMITTED] TR11AU03.042

    Example: If your electric cost is 12.62[cent]/KWH and the annual 
heating cost listed in the table is $200:
Your estimated cost = $200 x 12.62[cent]/8.41[cent]
Your estimated cost = $200 x 1.5 = $300
Your estimated cost = $300

                  (This is page 2 of sample fact sheet)

[53 FR 19729, May 27, 1988, as amended at 54 FR 53318, Dec. 28, 1989; 55 
FR 43093, Oct. 26, 1990; 56 FR 46728, Sept. 16, 1991; 57 FR 44332, Sept. 
25, 1992; 59 FR 34051, July 1, 1994; 59 FR 39952, Aug. 5, 1994; 60 FR 
56949, Nov. 13, 1995; 61 FR 48623, Sept. 16, 1996; 62 FR 44891, Aug. 25, 
1997; 64 FR 926, Jan. 6, 1999; 64 FR 71021, Dec. 20, 1999; 65 FR 53166, 
Sept. 1, 2000; 66 FR 49531, Sept. 28, 2001; 66 FR 57872, Nov. 19, 2001; 
67 FR 58328, Sept. 16, 2002; 68 FR 47451, Aug. 11, 2003]

               Appendix J1 to Part 305--Pool Heaters--Gas

                                                Range Information
----------------------------------------------------------------------------------------------------------------
                                                                   Range of thermal efficiencies  (percent)
                                                             ---------------------------------------------------
           Manufacturer's rated heating capacities                   Natural gas                 Propane
                                                             ---------------------------------------------------
                                                                  Low          High         Low          High
----------------------------------------------------------------------------------------------------------------
All capacities..............................................         78.4         97.0         78.4         97.0
----------------------------------------------------------------------------------------------------------------


[60 FR 43369, Aug. 21, 1995]

               Appendix J2 to Part 305--Pool Heaters--Oil

                            Range Information
------------------------------------------------------------------------
                                                    Range of thermal
                                                 efficiencies  (percent)
    Manufacturer's rated heating capacities    -------------------------
                                                    Low          High
------------------------------------------------------------------------
All capacities................................         78.0         78.0
------------------------------------------------------------------------


[60 FR 43370, Aug. 21, 1995]

         Appendix K to Part 305--Suggested Data Reporting Format

1. Date of Report_______________________________________________________
2. Company Name_________________________________________________________
3. City_________________________________________________________________
4. State________________________________________________________________
5. Product______________________________________________________________
6. Energy Type (gas, oil, etc.)_________________________________________
7. Model Number_________________________________________________________
8. Estimated Annual Energy Consumption or Energy Efficiency Rating______
9. Capacity_____________________________________________________________
10. Number of Tests Performed___________________________________________
11. Total Energy Consumption (based on all tests performed)_____________

[52 FR 49647, Dec. 31, 1987; as amended at 59 FR 34053, July 1, 1994. 
Redesignated at 59 FR 49565, Sept. 28, 1994]

[[Page 304]]

                  Appendix L to Part 305--Sample Labels
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[[Page 320]]


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[[Page 324]]


[GRAPHIC] [TIFF OMITTED] TC29SE91.036


[[Page 325]]


[GRAPHIC] [TIFF OMITTED] TC29SE91.037


[59 FR 25212, May 13, 1994; 59 FR 34053, July 1, 1994. Redesignated and 
amended at 59 FR 49565, 49567, Sept. 28, 1994; 65 FR 16142, Mar. 27, 
2000; 65 FR 17564, Apr. 3, 2000; 67 FR 47445, July 19, 2002; 68 FR 
36463, June 18, 2003; 68 FR 47451, Aug. 11, 2003]

    Effective Date Note: At 68 FR 55821, Sept. 29, 2003, appendix L to 
part 305 was amended by revising sample label 4 effective February 24, 
2004. For the convenience of the user, the revised text is set forth as 
follows:

[[Page 326]]

                  Appendix L to Part 305--Sample Labels

                                * * * * *
[GRAPHIC] [TIFF OMITTED] TR29SE03.061

                                * * * * *



PART 306_AUTOMOTIVE FUEL RATINGS, CERTIFICATION AND POSTING--Table of Contents




                                 General

Sec.

[[Page 327]]

306.0 Definitions.
306.1 What this rule does.
306.2 Who is covered.
306.3 Stayed or invalid parts.
306.4 Preemption.

              Duties of Refiners, Importers, and Producers

306.5 Automotive fuel rating.
306.6 Certification.
306.7 Recordkeeping.

                         Duties of Distributors

306.8 Certification.
306.9 Recordkeeping.

                           Duties of Retailers

306.10 Automotive fuel rating posting.
306.11 Recordkeeping.

                          Label Specifications

306.12 Labels.

    Authority: 15 U.S.C. 2801 et seq.

    Source: 44 FR 19169, Mar. 30, 1979, unless otherwise noted.

                                 General



Sec.  306.0  Definitions.

    As used in this part:
    (a) Octane rating means the rating of the anti-knock characteristics 
of a grade or type of gasoline as determined by dividing by 2 the sum of 
the research octane number plus the motor octane number.
    (b) Research octane number and motor octane number have the meanings 
given such terms in the specifications of the American Society for 
Testing and Materials (``ASTM'') entitled ``Standard Specification for 
Automotive Spark-Ignition Engine Fuel'' designated D4814-92c and, with 
respect to any grade or type of gasoline, are determined in accordance 
with test methods set forth in ASTM D2699-92, ``Standard Test Method for 
Knock Characteristics of Motor Fuels by the Research Method'' and ASTM 
D2700-92, ``Standard Test Method for Knock Characteristics of Motor and 
Aviation Fuels by the Motor Method.'' These incorporations by reference 
were approved by the Director of the Federal Register in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. Copies of ASTM D4814-92c, ASTM D2699-
92, and ASTM D2700-92 may be obtained from the American Society for 
Testing and Materials, 1916 Race Street, Philadelphia, PA, 19103, or may 
be inspected at the Federal Trade Commission, Public Reference Room, 
room 130, 600 Pennsylvania Avenue, NW., Washington, DC., or at the 
Office of the Federal Register, 800 North Capitol Street, NW., suite 
700, Washington, DC.
    (c) Refiner means any person engaged in the production or 
importation of automotive fuel.
    (d) Producer means any person who purchases component elements and 
combines them to produce and market automotive fuel.
    (e) Distributor means any person who receives automotive fuel and 
distributes such automotive fuel to another person other than the 
ultimate purchaser.
    (f) Retailer means any person who markets automotive fuel to the 
general public for ultimate consumption.
    (g) Ultimate purchaser means, with respect to any item, the first 
person who purchases such item for purposes other than resale.
    (h) Person, for purposes of applying any provision of the Federal 
Trade Commission Act, 15 U.S.C. 41 et seq., with respect to any 
provision of this part, includes a partnership and a corporation.
    (i) Automotive fuel means liquid fuel of a type distributed for use 
as a fuel in any motor vehicle, and the term includes, but is not 
limited to:
    (1) Gasoline, an automotive spark-ignition engine fuel, which 
includes, but is not limited to, gasohol (generally a mixture of 
approximately 90% unleaded gasoline and 10% denatured ethanol) and fuels 
developed to comply with the Clean Air Act, 42 U.S.C. 7401 et seq., such 
as reformulated gasoline and oxygenated gasoline; and
    (2) alternative liquid automotive fuels, including, but not limited 
to:
    (i) Methanol, denatured ethanol, and other alcohols;
    (ii) Mixtures containing 85 percent or more by volume of methanol, 
denatured ethanol, and/or other alcohols (or such other percentage, but 
not less than 70 percent, as determined by the Secretary of the United 
States Department of Energy, by rule, to provide for requirements 
relating to cold start, safety, or vehicle functions), with gasoline or 
other fuels;

[[Page 328]]

    (iii) Liquefied natural gas;
    (iv) Liquefied petroleum gas;
    (v) Coal-derived liquid fuels.
    (j) Automotive fuel rating means--
    (1) For gasoline, the octane rating; or
    (2) For an alternative liquid automotive fuel, the commonly used 
name of the fuel with a disclosure of the amount, expressed as a minimum 
percentage by volume, of the principal component of the fuel. A 
disclosure of other components, expressed as a minimum percentage by 
volume, may be included, if desired.

[58 FR 41372, Aug. 3, 1993]



Sec.  306.1  What this rule does.

    This rule deals with the certification and posting of automotive 
fuel ratings in or affecting commerce as ``commerce'' is defined in the 
Federal Trade Commission Act, 15 U.S.C. 41 et seq. It applies to 
persons, partnerships, and corporations. If you are covered by this 
regulation, breaking any of its rules is an unfair or deceptive act or 
practice under section 5 of that Act. You can be fined up to $10,000 
(plus an adjustment for inflation, under Sec.  1.98 of this chapter) 
each time you break a rule.

[58 FR 41373, Aug. 3, 1993, as amended at 61 FR 54549, Oct. 21, 1996; 61 
FR 55840, Oct. 29, 1996]



Sec.  306.2  Who is covered.

    You are covered by this rule if you are a refiner, importer, 
producer, distributor, or retailer of automotive fuel.

[58 FR 41373, Aug. 3, 1993]



Sec.  306.3  Stayed or invalid parts.

    If any part of this rule is stayed or held invalid, the rest of it 
will stay in force.

[44 FR 19169, Mar. 30, 1979. Redesignated at 58 FR 41372, Aug. 3, 1993]



Sec.  306.4  Preemption.

    The Petroleum Marketing Practices Act (``PMPA''), 15 U.S.C. 2801 et 
seq., as amended, is the law that directs the FTC to enact this rule. 
Section 204 of PMPA, 15 U.S.C. 2824, provides:

    (a) To the extent that any provision of this title applies to any 
act or omission, no State or any political subdivision thereof may adopt 
or continue in effect, except as provided in subsection (b), any 
provision of law or regulation with respect to such act or omission, 
unless such provision of such law or regulation is the same as the 
applicable provision of this title.
    (b) A State or political subdivision thereof may provide for any 
investigative or enforcement action, remedy, or penalty (including 
procedural actions necessary to carry out such investigative or 
enforcement actions, remedies, or penalties) with respect to any 
provision of law or regulation permitted by subsection (a).

[58 FR 41373, Aug. 3, 1993]

               Duties of Refiners, Importers and Producers



Sec.  306.5  Automotive fuel rating.

    If you are a refiner, importer, or producer, you must determine the 
automotive fuel rating of all automotive fuel before you transfer it. 
You can do that yourself or through a testing lab.
    (a) To determine the automotive fuel rating of gasoline, add the 
research octane number and the motor octane number and divide by two, as 
explained by the American Society for Testing and Materials (``ASTM'') 
in ASTM D4814-92c, entitled ``Standard Specifications for Automotive 
Spark-Ignition Engine Fuel.'' To determine the research octane number, 
use ASTM standard test method D2699-92, and to determine the motor 
octane number, use ASTM standard test method D2700-92.
    (b) To determine automotive fuel ratings for alternative liquid 
automotive fuels, you must possess a reasonable basis, consisting of 
competent and reliable evidence, for the percentage by volume of the 
principal component of the alternative liquid automotive fuel that you 
must disclose. You also must have a reasonable basis, consisting of 
competent and reliable evidence, for the minimum percentages by volume 
of other components that you choose to disclose.

[58 FR 41373, Aug. 3, 1993]



Sec.  306.6  Certification

    In each transfer you make to anyone who is not a consumer, you must 
certify the automotive fuel rating of the automotive fuel consistent 
with your determination. You can do this in either of two ways:

[[Page 329]]

    (a) Include a delivery ticket or other paper with each transfer of 
automotive fuel. It may be an invoice, bill of lading, bill of sale, 
terminal ticket, delivery ticket, or any other written proof of 
transfer. It must contain at least these four items:
    (1) Your name;
    (2) The name of the person to whom the automotive fuel is 
transferred;
    (3) The date of the transfer;
    (4) The automotive fuel rating. Octane rating numbers may be rounded 
off to a whole or half number equal to or less than the number 
determined by you.
    (b) Give the person a letter or other written statement. This letter 
must include the date, your name, the other person's name, and the 
automotive fuel rating of any automotive fuel you will transfer to that 
person from the date of the letter onwards. Octane rating numbers may be 
rounded to a whole or half number equal to or less than the number 
determined by you. This letter of certification will be good until you 
transfer automotive fuel with a lower automotive fuel rating. When this 
happens, you must certify the automotive fuel rating of the new 
automotive fuel either with a delivery ticket or by sending a new letter 
of certification.
    (c) When you transfer automotive fuel to a common carrier, you must 
certify the automotive fuel rating of the automotive fuel to the common 
carrier, either by letter or on the delivery ticket or other paper.

[58 FR 41373, Aug. 3, 1993, as amended at 59 FR 48798, Sept. 23, 1994]



Sec.  306.7  Recordkeeping.

    You must keep records of how you determined automotive fuel ratings 
for one year. They must be available for inspection by Federal Trade 
Commission and Environmental Protection Agency staff members, or by 
people authorized by FTC or EPA.

[58 FR 41374, Aug. 3, 1993]

                         Duties of Distributors



Sec.  306.8  Certification.

    If you are a distributor, you must certify the automotive fuel 
rating of the automotive fuel in each transfer you make to anyone who is 
not a consumer.
    (a) In the case of gasoline, if you do not blend the gasoline with 
other gasoline, you must certify the gasoline's octane rating consistent 
with the octane rating certified to you. If you blend the gasoline with 
other gasoline, you must certify consistent with your determination of 
the average, weighted by volume, of the octane ratings certified to you 
for each gasoline in the blend, or consistent with the lowest octane 
rating certified to you for any gasoline in the blend. Whether you blend 
gasoline or not, you may choose to certify the octane rating of the 
gasoline consistent with your determination of the octane rating 
according to the method in Sec.  306.5. In cases involving gasoline, the 
octane rating may be rounded to a whole or half number equal to or less 
than the number certified to you or determined by you.
    (b) If you do not blend alternative liquid automotive fuels, you 
must certify consistent with the automotive fuel rating certified to 
you. If you blend alternative liquid automotive fuels, you must possess 
a reasonable basis, consisting of competent and reliable evidence, for 
the automotive fuel rating that you certify for the blend.
    (c) You may certify either by using a delivery ticket with each 
transfer of automotive fuel, as outlined in Sec.  306.6(a), or by using 
a letter of certification, as outlined in Sec.  306.6(b).
    (d) When you transfer automotive fuel to a common carrier, you must 
certify the automotive fuel rating of the automotive fuel to the common 
carrier, either by letter or on the delivery ticket or other paper. When 
you receive automotive fuel from a common carrier, you also must receive 
from the common carrier a certification of the automotive fuel rating of 
the automotive fuel, either by letter or on the delivery ticket or other 
paper.

[58 FR 41374, Aug, 3, 1993, as amended at 59 FR 48798, Sept. 23, 1994]



Sec.  306.9  Recordkeeping

    You must keep for one year any delivery tickets or letters of 
certification on which you based your automotive fuel rating 
certifications. You must also keep for one year records of any

[[Page 330]]

automotive fuel rating determinations you made according to Sec.  306.5. 
They must be available for inspection by Federal Trade Commission and 
Environmental Protection Agency staff members, or by persons authorized 
by FTC or EPA.

[58 FR 41374, Aug. 3, 1993]

                           Duties of Retailers



Sec.  306.10  Automotive fuel rating posting.

    (a) If you are a retailer, you must post the automotive fuel rating 
of all automotive fuel you sell to consumers. You must do this by 
putting at least one label on each face of each dispenser through which 
you sell automotive fuel. If you are selling two or more kinds of 
automotive fuel with different automotive fuel ratings from a single 
dispenser, you must put separate labels for each kind of automotive fuel 
on each face of the dispenser.
    (b)(1) The label, or labels, must be placed conspicuously on the 
dispenser so as to be in full view of consumers and as near as 
reasonably practical to the price per unit of the automotive fuel.
    (2) You may petition for an exemption from the placement 
requirements by writing the Secretary of the Federal Trade Commission, 
Washington, DC 20580. You must state the reasons that you want the 
exemption.
    (c) In the case of gasoline, if you do not blend the gasoline with 
other gasoline, you must post the octane rating of the gasoline 
consistent with the octane rating certified to you. If you blend the 
gasoline with other gasoline, you must post consistent with your 
determination of the average, weighted by volume, of the octane ratings 
certified to you for each gasoline in the blend, or consistent with the 
lowest octane rating certified to you for any gasoline in the blend. 
Whether you blend gasoline or not, you may choose to post the octane 
rating of the gasoline consistent with your determination of the octane 
rating according to the method in Sec.  306.5. In cases involving 
gasoline, the octane rating must be shown as a whole or half number 
equal to or less than the number certified to you or determined by you.
    (d) If you do not blend alternative liquid automotive fuels, you 
must post consistent with the automotive fuel rating certified to you. 
If you blend alternative liquid automotive fuels, you must possess a 
reasonable basis, consisting of competent and reliable evidence, for the 
automotive fuel rating that you post for the blend.
    (e)(1) You must maintain and replace labels as needed to make sure 
consumers can easily see and read them.
    (2) If the labels you have are destroyed or are unusable or 
unreadable for some unexpected reason, you can satisfy the law by 
posting a temporary label as much like the required label as possible. 
You must still get and post the required label without delay.
    (f) The following examples of automotive fuel rating disclosures for 
some presently available alternative liquid automotive fuels are meant 
to serve as illustrations of compliance with this part, but do not limit 
the Rule's coverage to only the mentioned fuels:
    (1) ``Methanol/Minimum ------% Methanol''
    (2) ``Ethanol/Minimum ------% Ethanol''
    (3) ``M-85/Minimum ------% Methanol''
    (4) ``E-85/Minimum ------% Ethanol''
    (5) ``LPG/Minimum ------% Propane'' or
    ``LPG/Minimum ------% Propane and ------% Butane''
    (6) ``LNG/Minimum ------% Methane''
    (g) When you receive automotive fuel from a common carrier, you also 
must receive from the common carrier a certification of the automotive 
fuel rating of the automotive fuel, either by letter or on the delivery 
ticket or other paper.

[58 FR 41374, Aug. 3, 1993, as amended at 59 FR 48798, Sept. 23, 1994]



Sec.  306.11  Recordkeeping.

    You must keep for one year any delivery tickets or letters of 
certification on which you based your posting of automotive fuel 
ratings. You also must keep for one year records of any automotive fuel 
rating determinations you made according to Sec.  306.5. These records 
may be kept at the retail outlet or at another, reasonably close 
location.

[[Page 331]]

They must be available for inspection by Federal Trade Commission and 
Environmental Protection Agency staff members or by persons authorized 
by FTC or EPA.

[58 FR 41374, Aug. 3, 1993]

                          Label Specifications



Sec.  306.12  Labels.

    All labels must meet the following specifications:
    (a) Layout--(1) For gasoline labels. The label is 3 (7.62 
cm) wide x 2\1/2\ (6.35 cm) long. The illustrations appearing 
at the end of this rule are prototype labels that demonstrate the proper 
layout. ``Helvetica Black'' type is used throughout except for the 
octane rating number on octane labels, which is in Franklin gothic type. 
All type is centered. Spacing of the label is \1/4\ (.64 cm) 
between the top border and the first line of text, \1/8\ (.32 
cm) between the first and second line of text, \1/4\ (.64 cm) 
between the octane rating and the line of text above it. All text and 
numerals are centered within the interior borders.
    (2) For alternative liquid automotive fuel labels (one principal 
component). The label is 3 (7.62 cm) wide x 2\1/2\ 
(6.35 cm) long. ``Helvetica black'' type is used throughout. All type is 
centered. The band at the top of the label contains the name of the 
fuel. This band should measure 1 (2.54 cm) deep. Spacing of 
the fuel name is \1/4\ (.64 cm) from the top of the label and 
\3/16\ (.48 cm) from the bottom of the black band, centered 
horizontally within the black band. The first line of type beneath the 
black band is \1/8\ (.32 cm) from the bottom of the black 
band. All type below the black band is centered horizontally, with \1/
8\ (.32 cm) between each line. The bottom line of type is \3/
16\ (.48 cm) from the bottom of the label. All type should 
fall no closer than \3/16\ (.48 cm) from the side edges of 
the label. If you wish to change the dimensions of this single component 
label to accommodate a fuel descriptor that is longer than shown in the 
sample labels, you must petition the Federal Trade Commission. You can 
do this by writing to the Secretary of the Federal Trade Commission, 
Washington, DC 20580. You must state the size and contents of the label 
that you wish to use, and the reasons that you want to use it.
    (3) For alternative liquid automotive fuel labels (two components). 
The label is 3 (7.62 cm) wide x 2\1/2\ (6.35 cm) 
long. ``Helvetica black'' type is used throughout. All type is centered. 
The band at the top of the label contains the name of the fuel. This 
band should measure 1 (2.54 cm) deep. Spacing of the fuel 
name is \1/4\ (.64 cm) from the top of the label and \3/
16\ (.48 cm) from the bottom of the black band, centered 
horizontally within the black band. The first line of type beneath the 
black band is \3/16\ (.48 cm) from the bottom of the black 
band. All type below the black band is centered horizontally, with \1/
8\ (.32 cm) between each line. The bottom line of type is \1/
4\ (.64 cm) from the bottom of the label. All type should 
fall no closer than \3/16\ (.48 cm) from the side edges of 
the label. If you wish to change the dimensions of this two component 
label to accommodate additional fuel components, you must petition the 
Federal Trade Commission. You can do this by writing to the Secretary of 
the Federal Trade Commission, Washington, DC 20580. You must state the 
size and contents of the label that you wish to use, and the reasons 
that you want to use it.
    (b) Type size and setting--(1) For gasoline labels. The Helvetica 
series is used for all numbers and letters with the exception of the 
octane rating number. Helvetica is available in a variety of phototype 
setting systems, by linotype, and in a variety of computer desk-top and 
phototype setting systems. Its name may vary, but the type must conform 
in style and thickness to the sample provided here. The line ``Minimum 
Octane Rating'' is set in 12 point Helvetica Bold, all capitals, with 
letterspace set at 12\1/2\ points. The line ``(R+M)/2 METHOD'' is set in 
10 point Helvetica Bold, all capitals, with letterspace set at 10\1/2\ 
points. The octane number is set in 96 point Franklin gothic condensed 
with \1/8\ (.32 cm) space between the numbers.
    (2) For alternative liquid automotive fuel lables (one principal 
component). All type should be set in upper case (all caps) ``Helvetica 
Black'' throughout. Helvetica Black is available in a variety of 
computer desk-top and

[[Page 332]]

phototype setting systems. Its name may vary, but the type must conform 
in style and thickness to the sample provided here. The spacing between 
letters and words should be set as ``normal.'' The type for the fuel 
name is 50 point (\1/2\ (1.27 cm) cap height) ``Helvetica 
Black,'' knocked out of a 1 (2.54 cm) deep band. The type for 
the words ``MINIMUM'' and the principal component is 24 pt. (\1/
4\ (.64 cm) cap height.) The type for percentage is 36 pt. 
(\3/8\ (.96 cm) cap height).
    (3) For alternative liquid automotive fuel labels (two components). 
All type should be set in upper case (all caps) ``Helvetica Black'' 
throughout. Helvetica Black is available in a variety of computer desk-
top and phototype setting systems. Its name may vary, but the type must 
conform in style and thickness to the sample provided here. The spacing 
between letters and words should be set as ``normal.'' The type for the 
fuel name is 50 point (\1/2\ 1.27 cm) cap height) ``Helvetica 
Black,'' knocked out of a 1 (2.54 cm) deep band. All other 
type is 24 pt. (\1/4\ (.64 cm) cap height.)
    (c) Colors--(1) For gasoline labels. The basic color on all octane 
labels is process yellow. All type is process black. All borders are 
process black. All colors must be non-fade.
    (2) For alternative liquid automotive fuel labels. The background 
color on all the labels is Orange: PMS 1495. The knock-out type within 
the black band is orange PMS 1495. All other type is process black. All 
borders are process black. All colors must be non-fade.
    (d) Contents. Examples of the contents are shown in the sample 
labels. The proper octane rating for each gasoline must be shown. The 
proper automotive fuel rating for each alternative liquid automotive 
fuel must be shown. No marks or information other than that called for 
by this rule may appear on the labels.
    (e) Special label protection. All labels must be capable of 
withstanding extremes of weather conditions for a period of at least one 
year. They must be resistant to automotive fuel, oil, grease, solvents, 
detergents, and water.
    (f) Illustrations of labels. Labels should meet the specifications 
in this section, and should look like these examples, except the black 
print should be on the appropriately colored background.
[GRAPHIC] [TIFF OMITTED] TC29SE91.039


[[Page 333]]


[GRAPHIC] [TIFF OMITTED] TC29SE91.040


[58 FR 41375, Aug. 3, 1993]



PART 307_REGULATIONS UNDER THE COMPREHENSIVE SMOKELESS TOBACCO 
HEALTH EDUCATION ACT OF 1986--Table of Contents




                                  Scope

Sec.
307.1 Scope of regulations in this part.
307.2 Required warnings.

                               Definitions

307.3 Terms defined.

                          General Requirements

307.4 Prohibited acts.
307.5 Language requirements.

                            Label Disclosures

307.6 Requirements for disclosure on the label.

                         Advertising Disclosures

307.7 Requirements for disclosure in print advertising.
307.8 Requirements for disclosure in audiovisual and audio advertising.
307.9 Requirements for disclosure on utilitarian objects.
307.10 Cooperative advertising.

                                  Plans

307.11 Rotation, display, and distribution of warning statements on 
          smokeless tobacco packages.
307.12 Rotation, display, and dissemination of warning statements in 
          smokeless tobacco advertising.


[[Page 334]]


    Authority: 15 U.S.C. 4401 et seq.

    Source: 51 FR 40015, Nov. 4, 1986, unless otherwise noted.

                                  Scope



Sec.  307.1  Scope of regulations in this part.

    These regulations implement the Comprehensive Smokeless Tobacco 
Health Education Act of 1986 to be codified at 15 U.S.C. 4401.



Sec.  307.2  Required warnings.

    The Comprehensive Smokeless Tobacco Health Education Act of 1986 is 
the law that requires the enactment of these regulations. Section 7 of 
this law provides that no statement, other than the three warning 
statements required by the Act, shall be required by any Federal, State, 
or local statute or regulation to be included on the package or in the 
advertisement (unless the advertisement is an outdoor billboard) of a 
smokeless tobacco product. The warning statements required by the Act 
are as follows:

WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER

WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS

WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES

                               Definitions



Sec.  307.3  Terms defined.

    As used in this part, unless the context otherwise specifically 
requires:
    (a) Act means the Comprehensive Smokeless Tobacco Health Education 
Act of 1986 (Pub. L. 99-252) and any amendments thereto.
    (b) Commission means the Federal Trade Commission.
    (c) Regulation(s) means regulations promulgated by the Commission 
pursuant to sections 3 and 5 of the Act.
    (d) Commerce means (1) commerce between any State, the District of 
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, 
American Samoa, Wake Island, Midway Islands, Kingman Reef, or Johnston 
Island and any place outside thereof; (2) commerce between points in any 
State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, 
the Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman 
Reef, or Johnston Island, but through any place outside thereof; or (3) 
commerce wholly within the District of Columbia, Guam, the Virgin 
Islands, American Samoa, Wake Island, Midway Islands, Kingman Reef, or 
Johnston Island.
    (e) United States, when used in a geographical sense, means the 
several States, the District of Columbia, the Commonwealth of Puerto 
Rico, Guam, the Virgin Islands, American Samoa, Wake Island, Midway 
Islands, Kingman Reef, Johnston Island, and installations of the Armed 
Forces.
    (f) Smokeless tobacco product means any finely cut, ground, powered, 
or leaf tobacco that is intended to be placed in the oral cavity, 
including snuff, chewing tobacco, and plug tobacco.
    (g) Brand means smokeless tobacco products that bear a common 
identifying name or mark, regardless of whether the products are 
differentiated by type of product, size, shape, packaging, or other 
characteristic, and, in the case of generic or private label smokeless 
tobacco products, means all products produced by a single manufacturer 
or its affiliates or imported by a single importer or its affiliates.
    (h) Package means any pack, can, box, jar, carton, pouch, container, 
or wrapping in which any smokeless tobacco product is offered for sale, 
sold, or otherwise distributed to consumers, but for purposes of these 
regulations package does not include (1) any shipping container or 
wrapping used solely for transporting smokeless tobacco products in bulk 
or quantity to manufacturers, packagers, processors, wholesalers, or 
retailers unless the container or wrapping is intended for use as a 
retail display or (2) any wrapping or container that bears no written, 
printed, or graphic matter.
    (i) Label means any written, printed, or graphic matter affixed to 
or appearing on any smokeless tobacco product or any package containing 
a smokeless tobacco product with the exception of any revenue stamp 
affixed to a smokeless tobacco product.
    (j) Billboard means any outdoor sign with an area of more than 150 
square feet.

[[Page 335]]

    (k) Manufacturer means any person who manufacturers, produces, or 
processes any smokeless tobacco product.
    (l) Packager means any person who puts any smokeless tobacco product 
into packages to be offered for sale, sold, or distributed to consumers.
    (m) Importer means any person who puts any smokeless tobacco product 
that was not manufactured inside the United States into commerce to be 
offered for sale, sold, or distributed to consumers.
    (n) Utilitarian objects means items, other than smokeless tobacco 
products, that are sold or given or caused to be sold or given by any 
manufacturer, packager or importer to consumers for their personal use 
and that display the brand name, logo, or selling message of any 
smokeless tobacco product. Such items include, but are not limited to, 
pens, pencils, clothing or sporting goods.

[51 FR 40015, Nov. 4, 1986, as amended at 56 FR 11662, Mar. 20, 1991]

                          General Requirements



Sec.  307.4  Prohibited acts.

    (a) No manufacturer, packager, or importer of any smokeless tobacco 
product shall distribute, or cause to be distributed, in commerce any 
smokeless tobacco product in a package that, in accordance with the 
labeling requirements of the Act and these regulations, does not bear 
one of the following warning statements.

WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER

WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS

WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES


Each smokeless tobacco product shall upon being prepared for 
distribution in commerce for retail sale, but before it is distributed 
to be offered for retail sale, be labeled in accordance with the Act and 
regulations in this part. In the case of an importer, the label 
statements may be affixed in the country of origin or after importation 
into the United States, but shall be affixed before the smokeless 
tobacco product is removed from bond for sale or distribution. This 
section does not apply to any smokeless tobacco product that is 
manufactured, packaged, or imported in the United States for export from 
the United States, if the product is not in fact distributed in commerce 
for use in the United States.
    (b) No manufacturer, packager, or importer of any smokeless tobacco 
product shall advertise or cause to be advertised (other than through 
the use of billboard advertising) within the United States any smokeless 
tobacco product unless the advertising bears one of the warning 
statements as required by the Act and the regulations and set forth in 
Sec.  307.4(a). This requirement is not applicable to company and 
divisional names, when used as such, to signs on factories, plants, 
warehouses, and other facilities related to the manufacturer or factory 
storage of smokeless tobacco, to corporate or financial reports, to 
communications to security holders and others who customarily receive 
copies of these communications, to employment advertising, to 
advertising in tobacco trade publications, or to promotional materials 
that are distributed to smokeless tobacco wholesalers, dealers, or 
merchants, but not to consumers. In addition, this requirement does not 
apply to shelf-talkers and similar product locators with a display area 
of 12 square inches or less.
    (c) No manufacturer, packager, or importer shall fail to submit a 
plan to the Commission which specifies the method that will be used to 
rotate, display, and distribute the statements required by the Act and 
regulations in this part. The Commission shall approve a plan if the 
plan provides for the rotation, display, and distribution of the 
statements in a manner that complies with the Act and these regulations. 
Authority to approve plans submitted by smokeless tobacco manufacturers, 
packagers, and importers has been delegated by the Commission to the 
Associate Director for Advertising Practices. Where significant issues 
not previously considered by the Commission are present, however, those 
plans will be referred by the Associate Director for Advertising 
Practices to the Commission in the first instance. This delegation is 
authorized by section 1(a) of the Reorganization Plan No. 4 of 1961 in 
order to enhance the efficiency and

[[Page 336]]

result in expedited treatment of these plans. Pursuant to section 1(b) 
of the Reorganization Plan, the Commission will retain the discretionary 
right to review the actions of the delegate. Any smokeless tobacco 
manufacturer, packager, or importer may within 30 days of the delegate's 
action file with the Secretary of the Commission a request for full 
Commission review of the action. If no review is sought by petition of 
the submitter of a plan or any intervenor or upon the Commission's own 
initiative within 30 days of the action, or if a review is sought and 
denied in this 30 day period, the delegate's action shall be deemed to 
be the action of the Commission.
    (d) A manufacturer, packager, or importer of smokeless tobacco 
products shall be deemed to be in compliance with the Act and these 
regulations if it has taken reasonable steps to:
    (1) Provide, by written contract or other clear instructions, for 
the rotation of the label statements required by the Act;
    (2) Give clear instructions and, if possible, furnish materials 
(such as film negatives, acetates, or other facsimiles) for the 
production of smokeless tobacco packages and advertising that contain 
the required warning statements; and
    (3) Prevent and correct mistakes, errors, or omissions that have 
come to its attention.

In the event of the distribution of labels or the publication of 
advertisements that do not conform with the Act and these regulations, 
the burden of establishing that reasonable steps have been taken 
(including fulfilling the conditions described in paragraphs (d) (1) 
through (3) of this section) to comply shall rest with the manufacturer, 
packager, or importer of smokeless tobacco.

[51 FR 40015, Nov. 4, 1986, as amended at 56 FR 11662, Mar. 20, 1991]



Sec.  307.5  Language requirements.

    The warning statement on the label of a smokeless tobacco product 
required by the Act and these regulations shall be set out in the 
English language. If the label of a smokeless tobacco product contains a 
required warning in a language other than English, the required warning 
must also appear in English. In the case of an advertisement for a 
smokeless tobacco product in a newspaper, magazine, periodical, or other 
publication that is not in English, the warning statement shall appear 
in the predominant language of the publication in which the 
advertisement appears. In the case of any other advertisement, the 
warning statement shall appear in the same language as that principally 
used in the advertisement.

                            Label Disclosures



Sec.  307.6  Requirements for disclosure on the label.

    (a) In the case of the label of a smokeless tobacco package, the 
warning statement required by the Act and these regulations must be in a 
conspicuous and prominent place on the package. A conspicuous and 
prominent place is a part of a label that is likely to be displayed, 
presented, shown, or examined. For example, in the case of the following 
types of packages, the following places shall be deemed to be 
conspicuous and prominent.

Cylindrical can--Side of the package
Pouch--Front of the package, provided that, in the case of a pouch with 
two identical face panels, the front of the pouch is the face panel upon 
which the warning is printed
Rectangular box of snuff, plug of chewing tobacco, or dispenser of 
individual packages of smokeless tobacco that may be purchased in its 
entirety--Any side of the package, provided that the side panel used 
does not bear any written or graphic matter other than the background 
color of the side panel and reasonable extensions of graphic matter from 
other panels


However, in the case of any package of smokeless tobacco, absent special 
circumstances, the required warning statement shall not be deemed to be 
in a conspicuous and prominent place if it appears on the bottom (that 
is, the underside) of the package or is printed on the tear line or on 
any other surface where it will be obliterated when the package is 
opened. However, in the case of a rectangular package that is wrapped in 
a continuous sheet of foil or plastic with randomly appearing label 
information, the required warning shall be deemed to be in a conspicuous

[[Page 337]]

and prominent place if it appears at least once in its entirety on any 
part of the package that is not crimped or seamed.
    (b) The label statement required by the Act and these regulations 
must also be in a conspicuous format and in a conspicuous and legible 
type in contrast with all other printed material on the package. The 
required warning statement shall be deemed to be in a conspicuous format 
if it appears in two to four lines that are parallel to each other as 
well as to the base of the package. However, in the case of a 
cylindrical package with a diameter of 1 and \3/4\ inches or less the 
required warning statement need not be parallel with the base of the 
package to be deemed to be in a conspicuous format. In the case of all 
packages the required warning statement shall be deemed to be in a 
conspicuous format if it is separated in every direction from other 
written or graphic matter on the label by the equivalent of at least 
twice the point size of the type in which the warning is printed or if 
it is the only written matter on the surface of the package. The 
required warning statement shall be deemed to be in a conspicuous and 
legible type if it appears in all capitals in Univers 57 normal or an 
equivalent type style. For example, in the case of the following types 
of packages with the specified capacity, the following type sizes shall 
be deemed to be conspicuous and legible.

1 and \1/2\ ounce snuff can--Seven point type
2 to 4 ounce pouch or plug of chewing tobacco--Eight point type, 
provided that if the warning statement is printed in one line, it will 
be deemed to be conspicuous and legible in eleven point type
Can roll consisting of cans wrapped for sale as a single unit--Twelve 
point type, provided that, if the warning statements on the individual 
cans are completely visible no warning statement is required on the 
outer wrapping
Dispenser of individual packages of smokeless tobacco that may be 
purchased in its entirety--Twelve point type


The required warning statement shall be deemed to be in contrast with 
all other printed material on the package if it is printed in a color 
(including black and white) that is clearly visible against the 
background on which the warning appears.

                         Advertising Disclosures



Sec.  307.7  Requirements for disclosure in print advertising.

    (a) In the case of print advertisements for smokeless tobacco, 
including but not limited to, advertisements in newspapers, magazines, 
or other periodicals; point-of-sale promotional materials; non-point of 
sale promotional materials such as leaflets, pamphlets, coupons, direct 
mail circulars, or paperback book inserts; and posters and placards 
(other than outdoor billboard advertising), the warning statement 
required by the Act and these regulations must be in a conspicuous and 
prominent location, in conspicuous and legible type in contrast with all 
other printed material in the advertisement and must appear in capital 
letters in a circle and arrow format. A conspicuous and prominent 
location is anywhere within the trim area other than the margin in the 
case of an advertisement in a newspaper, magazine, or other periodical, 
and in all cases is not immediately next to other written matter or to 
any circular designs, elements, or similar geometric forms (other than a 
picture of a smokeless tobacco package such as a cylindrical snuff can). 
A circle and arrow will not be deemed to be conspicuous and prominent if 
it is included as an integral part of a specific design or illustration, 
such as a picture of the package, in the advertisement, unless at least 
80 percent of the area of the advertisement is taken up by a picture of 
the package.
    (b) The advertising warning statements required by the Act and these 
regulations must be in conspicuous and legible type in contrast with all 
other printed material in the advertisement and must appear in all 
capital letters in a circle and arrow format. The proportions of the 
circle and arrow shall be deemed to be conspicuous if they are such that 
the base of the arrow is equal to \3/4\ of the diameter of the circle; 
the neck of the arrow is equal to \1/8\ of the diameter of the circle; 
the widest part of the head of the arrow is equal to the diameter of the 
circle; the tip of the arrow is centered at a point equal to \3/4\ of 
the diameter from the lowest point of the circle; and the distance 
between the tip of the arrow and the base of the

[[Page 338]]

arrow is equal to \3/8\ of the diameter of the circle. The statements 
shall be deemed to be conspicous if they are parallel to the foot of the 
advertisement and centered in the circle, and the word ``WARNING'' 
followed by a colon appears in the neck of the arrow.
    (c) The required warning statement shall be deemed to be conspicuous 
if it is printed in all capitals in Univers 57 normal or an equivalent 
type style and:
    (1) The rule and the statement are printed in a color (including 
black and white) that is clearly visible against the background upon 
which they appear; and
    (2) The background field within the circle and arrow is clearly 
visible against the background of the advertisement; and
    (3) The warning has the following minimum outside dimensions in 
relation to the size of the advertisement.

[[Page 339]]

[GRAPHIC] [TIFF OMITTED] TC29SE91.041

    A warning printed in black in a circle with a black rule and a white 
interior background shall be deemed a clearly visible color against a 
clearly visible background, except that any such black on white warning 
that appears against a uniform white background in an advertisement 
shall be deemed to be conspicuous only if it meets the size requirements 
of Sec.  307.7(d) of this section.
    (d) As an alternative to the format specified in Sec.  307.7(c), the 
required

[[Page 340]]

warning statement shall be deemed to be conspicuous if it is printed in 
all capitals in Univers 67 normal or an equivalent type style and
    (1) The rule that forms the circle and arrow and the required 
statement are printed in a color (including black and white) that is 
clearly visible against the background upon which they appear,
    (2) The background of the circle and arrow is a uniform color, and
    (3) The warning has the following minimum outside dimensions in 
relation to the size of the advertisement.

[[Page 341]]

[GRAPHIC] [TIFF OMITTED] TC29SE91.042

    (e) An advertisement in a newspaper, magazine, or other periodical 
that occupies more than one page shall not be required to have more than 
one warning statement, but the dimensions of the circle and arrow shall 
be determined by the aggregate area of the entire advertisement, and the 
warning

[[Page 342]]

statement shall appear on the page that contains most of the 
advertisement. Point-of-sale and non-point of sale promotional materials 
of more than one page in length shall not be required to have more than 
one warning statement, and the dimensions of the circle and arrow shall 
be determined by the size of the advertisement on the page on which most 
of the advertisement appears. Warning statements in circles and arrows 
that meet the specifications of this section and conform to the 
following diagram shall be deemed to be in a conspicuous format.
[GRAPHIC] [TIFF OMITTED] TC29SE91.043



Sec.  307.8  Requirements for disclosure in audiovisual and audio advertising.

    In the case of advertisements for smokeless tobacco on videotapes, 
casettes, or discs; promotional films or filmstrips; and promotional 
audiotapes or other types of sound recordings, the warning statement 
required by the Act and these regulations must be conspicuous and 
prominent. If the advertisement has a visual component, the warning 
statement shall be deemed to be conspicuous and prominent if it is 
superimposed on the screen in a circle and arrow format at the end of 
the advertisement for a length of time and in graphics so that it is 
easily legible. If the advertisement has an audio component, the warning 
statement shall be

[[Page 343]]

deemed to be conspicuous and prominent if it is announced at the end of 
the advertisement in a manner that is clearly audible. If an 
advertisement has both a visual and an audio component, the warning 
statement shall be deemed to be conspicuous and prominent if it is 
superimposed on the screen in a circle and arrow format and announced 
simultaneously at the end of the advertisement in a manner that is 
easily legible and clearly audible. Provided, however, in the case of an 
audio advertisement in a retail store or other place where smokeless 
tobacco products are offered for sale, no warning shall be required, 
even if a manufacturer, packager, or importer of smokeless tobacco 
products provides an incentive for disseminating the ad, so long as the 
announcement includes only the brand name or product identifier, the 
price, and the product's location in the store.



Sec.  307.9  Requirements for disclosure on utilitarian objects.

    (a) In the case of advertisements for smokeless tobacco products on 
utilitarian objects, the warning statements required by the Act and 
these regulations must be in a conspicuous and legible type in contrast 
with all other printed material on the object and must appear within the 
circle and arrow format. The proportions of the circle and arrow shall 
be deemed to be conspicuous if in accordance with with those set forth 
in Sec.  307.7(b). The required warning statement shall be deemed 
conspicuous if it conforms to the requirements and proportions as set 
forth in Sec. Sec.  307.7(c) and 307.7(d). For purposes of determining 
the size of the warning statement, the display area for an advertisement 
on a utilitarian object shall be the visible area on which the brand 
name, logo or selling message appears. For example, the display area for 
a t-shirt with a brand name, logo or selling message on the front or 
back is the entire front or back of the shirt, excluding any sleeves. 
For a t-shirt with a brand name, logo or selling message on the sleeve, 
the display area is the sleeve. However, in no case must the diameter of 
the circle exceed the longest line displayed in the brand name, logo or 
selling message. The Commission considers a logo to include any brand 
specific characteristics of a smokeless tobacco product, including but 
not limited to any recognizable pattern of colors or symbols associated 
with a particular brand.
    (b) The warning statement required by the Act and these regulations 
must be printed, embossed, embroidered or otherwise affixed to the 
utilitarian object with a permanence and durability that is comparable 
to the permanence and durability of the brand name, logo, or selling 
message. For example, if a product brand name or logo is embroidered on 
a hat, and a legible warning cannot be embroidered in the proper size 
due to technological limitations, the warning may be affixed to the hat 
by another method, so long as its permanence and durability is 
comparable to that of the brand name, logo or selling message.
    (c) The warning statement required by this Act and these regulations 
must be in a conspicuous and prominent location on the object. A 
conspicuous and prominent location on the object is one that is 
proximate to and on the same surface as the smokeless tobacco brand 
name, logo, or selling message, and is visible when the brand name, logo 
or selling message is visible. If the brand name, logo or selling 
message is displayed in more than one location on the utilitarian 
object, the warning must appear proximate to each brand name, logo or 
selling message. In the alternative, the warning may appear only once on 
the object; in that case, however, the advertising display area consists 
of the aggregate of all the surface areas on which any brand names, 
logos or selling messages appear.
    (d) Small Items. For those utilitarian objects under 8 square inches 
which are viewed predominantly by the user, the warning statement 
required by this Act and by these regulations shall be deemed 
conspicuous and prominent when:
    (1) Printed on the package of an item, if the item is disseminated 
in a package to the consumer. The entire surface area of the package 
would comprise the display area for purposes of determining warning size 
in accordance

[[Page 344]]

with Sec. Sec.  307.7 (c) and (d) of the current regulations; or
    (2) Placed in the form of a sticker or decal directly onto the item 
in the Number 1 warning size as set forth in Sec. Sec.  307.7 (c) and 
(d) of the current regulations. The item should be packaged in such a 
way to ensure that the sticker cannot be removed before placement in the 
hands of the consumer.
    (e) Hats. For fabric baseball style hats, the warning statement 
required by the Act and these regulations shall be deemed conspicuous 
and prominent in the Number 3 size as set forth in Sec. Sec.  307.7 (c) 
and (d).
    (f) Any manufacturer, packager or importer may apply to the 
Commission for an exemption from the warning requirements of the Act and 
these regulations for items such as food products to which the health 
warnings could logically apply. Authority to grant such exemptions has 
been delegated by the Commission to the Associate Director for 
Advertising Practices. Where significant issues not previously 
considered by the Commission are present, however, those plans will be 
referred by the Associate Director for Advertising Practices to the 
Commission in the first instance. This delegation is authorized by 
section 1(a) of the Reorganization Plan No. 4 of 1961 in order to 
enhance the efficiency and result in expedited treatment of any request 
for an exemption. The Commission's discretionary right to review actions 
of the delegate, and the procedure by which a smokeless tobacco 
manufacturer, packager, or importer may request full Commission review 
of the delegate's action are as set forth in Sec.  307.4(c) of these 
regulations.

[56 FR 11662, Mar. 20, 1991]



Sec.  307.10  Cooperative advertising.

    The Act prohibits any manufacturer, packager, or importer of 
smokeless tobacco products from advertising or causing to advertise any 
smokeless tobacco product within the United States without the required 
warning. Accordingly, all advertisements for smokeless tobacco products 
(including cooperative advertisement) paid for, directly or indirectly, 
in whole or in part, by a manufacturer, packager, or importer of 
smokeless tobacco products must bear the required warning. Provided, 
however, in the case of a print advertisement for a smokeless tobacco 
product disseminated by a retailer of smokeless tobacco products, other 
than a manufacturer, packager, or importer of smokeless tobacco 
products, with a display area of 4 square inches or less, no warning is 
required so long as the advertisement contains only the brand name or 
other product identifier and a price. In addition, no warning is 
required in the case of certain in-store audio announcements as 
described in Sec.  307.8. Any advertisement of a smokeless tobacco 
product paid for entirely by a retailer or any person other than a 
manufacturer, packager, or importer of smokeless tobacco products need 
not carry a warning statement.

[51 FR 40015, Nov. 4, 1986. Redesignated at 56 FR 11662, Mar. 20, 1991]

                                  Plans



Sec.  307.11  Rotation, display, and distribution of warning statements 
on smokeless tobacco packages.

    (a) In the case of the package of a smokeless tobacco product, each 
of the three warning statements required by the Act must (1) be 
displayed randomly by each manufacturer, packager, or importer of a 
smokeless tobacco product in each 12-month period in as equal a number 
of times as possible on each brand of the product and (2) be randomly 
distributed in all parts of the United States in which the product is 
marketed. The Commission will interpret the statutory language ``equal 
number of times as possible'' as permitting deviations of 4 percent or 
less in a 12-month period. Random distribution means that there is 
nothing in the production or distribution process of a smokeless tobacco 
product that would prevent the three warning statements on the package 
from being distributed evenly in all parts of the United States where 
the product is marketed.
    (b) Each manufacturer, packager, or importer of a smokeless tobacco 
product shall submit to the Commission or its designated representative 
a plan that provides for the display of the three warning statements on 
the package of a smokeless tobacco product as

[[Page 345]]

required by the Act and these regulations. This plan shall be 
sufficiently detailed to enable the Commission to determine whether the 
warning statements appear on the package in a manner consistent with the 
Act and these regulations. These requirements may be satisfied in a 
number of ways. For example, a plan may satisfy the equal display 
requirement by providing for the engraving or preparation of cylinders, 
plates, or equivalent production materials in a manner that results in 
the simultaneous printing of the three required warnings in as near an 
equal number of times as possible under the circumstances. 
Alternatively, a plan may satisfy the equal display requirement by 
providing that stickers bearing the three required warnings be printed 
in equal numbers and affixed randomly to packages of the product. 
Alternatively, a plan may satisfy the equal display requirement by 
providing for the preparation of separate cylinders, plates, and 
equivalent production materials and requiring that they be changed at 
fixed intervals in a manner that results in the display of the three 
required warnings in as near an equal number of times as possible under 
the circumstances during a 1-year period. In any event, nothing in these 
regulations requires the use of more than one warning statement on the 
label of any brand during a given 4-month period.
    (c) A plan for the rotation, display, and distribution of warning 
statements on smokeless tobacco packages shall include representative 
samples of labels with each of the three warning statements required by 
the Act and these regulations. This provision does not require 
submission of a label with each of the required warning statements for 
every brand marketed by a manufacturer, packager, or importer of 
smokeless tobacco products and shall be deemed to be satisfied by 
submission of labels for different types of smokeless tobacco products, 
such as moist snuff, scotch snuff, and loose-leaf and plug chewing 
tobacco, and a range of package sizes for each type of product.

[51 FR 40015, Nov. 4, 1986. Redesignated at 56 FR 11662, Mar. 20, 1991]



Sec.  307.12  Rotation, display, and dissemination of warning statements 
in smokeless tobacco advertising.

    (a) In the case of advertising for a smokeless tobacco product, each 
of the three warning statements required by the Act must be rotated 
every 4 months by each manufacturer, packager, or importer of a 
smokeless tobacco product in an alternating sequence in the 
advertisement for each brand of the product. Any rotational system, 
however, may take into account practical constraints on the production 
and distribution of advertising.
    (b) Each manufacturer, packager, or importer of a smokeless tobacco 
product must submit a plan to the Commission or its designated 
representative that ensures that the three warning statements are 
rotated every four (4) months in alternating sequence. There may be more 
than one system, however, that complies with the Act and these 
regulations. For example, a plan may require all brands to display the 
same warning during each four-month period or require each brand to 
display a different warning during a given four-month period. A plan 
shall describe the method of rotation and shall include a list of the 
designated warnings for each four-month period during the first year for 
each brand. A plan shall describe the method that will be used to ensure 
the proper rotation in different advertising media in sufficient detail 
to ensure compliance with the Act and these regulations, although a 
number of different methods may satisfy these requirements. For example, 
a satisfactory plan for advertising in newspapers, magazines, or other 
periodicals could provide for rotation according to either the cover or 
closing date of the publication. A satisfactory plan for posters and 
placards, other than billboard advertising, could provide for rotation 
according to either the scheduled or the actual appearance of the 
advertising. A satisfactory plan for point-of-sale and non-point-of-sale 
promotional materials such as leaflets, pamphlets, coupons, direct mail 
circulars, paperback book inserts, or non-print items, or for 
utilitarian objects, could provide for rotation according to the date 
the materials or objects are

[[Page 346]]

ordered by the smokeless tobacco manufacturer, or the date the objects 
or materials are scheduled to be disseminated, provided that the 
production of such materials or objects is carried out in a manner 
consistent with customary business practices.
    (c) A plan for the rotation, display, and dissemination of warning 
statements in smokeless tobacco advertising shall include a 
representative sample of each of the three warning statements required 
by the Act and these regulations. This provision does not require the 
submission of all advertising for each brand marketed by a manufacturer, 
packager, or importer of smokeless tobacco products and shall be deemed 
to be satisfied by submission of actual examples of different types of 
advertising materials for various brands, prototypes of actual 
advertising materials, the warning statement as it would appear in 
different sizes of advertisements, or acetates or other facsimiles for 
the warning statement as it would appear in different sizes of 
advertisements.

[51 FR 40015, Nov. 4, 1986. Redesignated and amended at 56 FR 11662, 
11663, Mar. 20, 1991; 58 FR 4874, Jan. 15, 1993; 61 FR 45886, Aug. 30, 
1996]



PART 308_TRADE REGULATION RULE PURSUANT TO THE TELEPHONE DISCLOSURE 
AND DISPUTE RESOLUTION ACT OF 1992--Table of Contents




Sec.
308.1 Scope of regulations in this part.
308.2 Definitions.
308.3 Advertising of pay-per-call services.
308.4 Special rule for infrequent publications.
308.5 Pay-per-call service standards.
308.6 Access to information.
308.7 Billing and collection for pay-per-call services.
308.8 Severability.
308.9 Rulemaking review.

    Authority: Pub. L. 102-556, 106 Stat. 4181 (15 U.S.C. 5701, et seq.)

    Source: 58 FR 42400, Aug. 9, 1993, unless otherwise noted.



Sec.  308.1  Scope of regulations in this part.

    This rule implements titles II and III of the Telephone Disclosure 
and Dispute Resolution Act of 1992, to be codified in relevant part at 
15 U.S.C. 5711-14, 5721-24.



Sec.  308.2  Definitions.

    (a) Bona fide educational service means any pay-per-call service 
dedicated to providing information or instruction relating to education, 
subjects of academic study, or other related areas of school study.
    (b) Commission means the Federal Trade Commission.
    (c) Pay-per-call service has the meaning provided in section 228 of 
the Communications Act of 1934, 47 U.S.C. 228. \1\
---------------------------------------------------------------------------

    \1\ Section 228 of the Communications Act of 1934 states:
    (1) The term pay-per-call services means any service--
    (A) In which any person provides or purports to provide--
    (i) Audio information or audio entertainment produced or packaged by 
such person;
    (ii) Access to simultaneous voice conversation services; or
    (iii) Any service, including the provision of a product, the charges 
for which are assessed on the basis of the completion of the call;
    (B) For which the caller pays a per-call or per-time-interval charge 
that is greater than, or in addition to, the charge for transmission of 
the call; and
    (C) Which is accessed through use of a 900 telephone number or other 
prefix or area code designated by the (Federal Communications) 
Commission in accordance with subsection (b)(5) (47 U.S.C. 228(b)(5)).
    (2) Such term does not include directory services provided by a 
common carrier or its affiliate or by a local exchange carrier or its 
affiliate, or any service the charge for which is tariffed, or any 
service for which users are assessed charges only after entering into a 
presubcription or comparable arrangement with the provider of such 
service.
---------------------------------------------------------------------------

    (d) Person means any individual, partnership, corporation, 
association, government or governmental subdivision or agency, or other 
entity.
    (e)(1) Presubscription or comparable arrangement means a contractual 
agreement in which
    (i) The service provider clearly and conspicuously discloses to the 
consumer all material terms and conditions associated with the use of 
the service, including the service provider's name and address, a 
business telephone number which the consumer

[[Page 347]]

may use to obtain additional information or to register a complaint, and 
the rates for the service;
    (ii) The service provider agrees to notify the consumer of any 
future rate changes;
    (iii) The consumer agrees to utilize the service on the terms and 
conditions disclosed by the service provider; and
    (iv) The service provider requires the use of an identification 
number or other means to prevent unauthorized access to the service by 
nonsubscribers.
    (2) Disclosure of a credit card or charge card number, along with 
authorization to bill that number, made during the course of a call to a 
pay-per-call service shall constitute a presubscription or comparable 
arrangement if the credit or charge card is subject to the dispute 
resolution requirements of the Fair Credit Billing Act and the Truth in 
Lending Act, as amended. No other action taken by the consumer during 
the course of a call to a pay-per-call service can be construed as 
creating a presubscription or comparable arrangement.
    (f) Program-length commercial means any commercial or other 
advertisement fifteen (15) minutes in length or longer or intended to 
fill a television or radio broadcasting or cablecasting time slot of 
fifteen (15) minutes in length or longer.
    (g) Provider of pay-per-call services means any person who sells or 
offers to sell a pay-per-call service. A person who provides only 
transmission services or billing and collection services shall not be 
considered a provider of pay-per-call services.
    (h) Reasonably understandable volume means at an audible level that 
renders the message intelligible to the receiving audience, and, in any 
event, at least the same audible level as that principally used in the 
advertisement or the pay-per-call service.
    (i) Service bureau means any person, other than a common carrier, 
who provides, among other things, access to telephone service and voice 
storage to pay-per-call service providers.
    (j) Slow and deliberate manner means at a rate that renders the 
message intelligible to the receiving audience, and, in any event, at a 
cadence or rate no faster than that principally used in the 
advertisement or the pay-per-call service.
    (k) Sweepstakes, including games of chance, means a game or 
promotional mechanism that involves the elements of a prize and chance 
and does not require consideration.



Sec.  308.3  Advertising of pay-per-call services.

    (a) General requirements. The following requirements apply to 
disclosures required in advertisements under Sec. Sec.  308.3 (b)-(d), 
and (f):
    (1) The disclosures shall be made in the same language as that 
principally used in the advertisement.
    (2) Television video and print disclosures shall be of a color or 
shade that readily contrasts with the background of the advertisement.
    (3) In print advertisements, disclosures shall be parallel with the 
base of the advertisement.
    (4) Audio disclosures, whether in television or radio, shall be 
delivered in a slow and deliberate manner and in a reasonably 
understandable volume.
    (5) Nothing contrary to, inconsistent with, or in mitigation of, the 
required disclosures shall be used in any advertisement in any medium; 
nor shall any audio, video or print technique be used that is likely to 
detract significantly from the communication of the disclosures.
    (6) In any program-length commercial, required disclosures shall be 
made at least three times (unless more frequent disclosure is otherwise 
required) near the beginning, middle and end of the commercial.
    (b) Cost of the call. (1) The provider of pay-per-call services 
shall clearly and conspicuously disclose the cost of the call, in Arabic 
numerals, in any advertisement for the pay-per-call service, as follows:
    (i) If there is a flat fee for the call, the advertisement shall 
state the total cost of the call.
    (ii) If the call is billed on a time-sensitive basis, the 
advertisement shall state the cost per minute and any minimum charges. 
If the length of the program can be determined in advance, the 
advertisement shall also state the

[[Page 348]]

maximum charge that could be incurred if the caller listens to the 
complete program.
    (iii) If the call is billed on a variable rate basis, the 
advertisement shall state, in accordance with Sec. Sec.  308.3(b)(1) (i) 
and (ii), the cost of the initial portion of the call, any minimum 
charges, and the range of rates that may be charged depending on the 
options chosen by the caller.
    (iv) The advertisement shall disclose any other fees that will be 
charged for the service.
    (v) if the caller may be transferred to another pay-per-call 
service, the advertisement shall disclose the cost of the other call, in 
accordance with Sec. Sec.  308.3(b)(1) (i), (ii), (iii), and (iv).
    (2) For purposes of Sec.  308.3(b), disclosures shall be made 
``clearly and conspicuously'' as set forth in Sec.  308.3(a) and as 
follows:
    (i) In a television or videotape advertisement, the video disclosure 
shall appear adjacent to each video presentation of the pay-per-call 
number. However, in an advertisement displaying more than one pay-per-
call number with the same cost, the video disclosure need only appear 
adjacent to the largest presentation of the pay-per-call number. Each 
letter or numeral of the video disclosure shall be, at a minimum, one-
half the size of each letter or numeral of the pay-per-call number to 
which the disclosure is adjacent. In addition, the video disclosure 
shall appear on the screen for the duration of the presentation of the 
pay-per-call number. An audio disclosure shall be made at least once, 
simultaneously with a video presentation of the disclosure. However, no 
audio presentation of the disclosure is required in: (A) An 
advertisement fifteen (15) seconds or less in length in which the pay-
per-call number is not presented in the audio portion, or (B) an 
advertisement in which there is no audio presentation of information 
regarding the pay-per-call service, including the pay-per-call number. 
In an advertisement in which the pay-per-call number is presented only 
in the audio portion, the cost of the call shall be delivered 
immediately following the first and last delivery of the pay-per-call 
number, except that in a program-length commercial, the disclosure shall 
be delivered immediately following each delivery of the pay-per-call 
number.
    (ii) In a print advertisement, the disclosure shall be placed 
adjacent to each presentation of the pay-per-call number. However, in an 
advertisement displaying more than one pay-per-call number with the same 
cost, the disclosure need only appear adjacent to the largest 
presentation of the pay-per-call number. Each letter or numeral of the 
disclosure shall be, at a minimum, one-half the size of each letter or 
numeral of the pay-per-call number to which the disclosure is adjacent.
    (iii) In a radio advertisement, the disclosure shall be made at 
least once, and shall be delivered immediately following the first 
delivery of the pay-per-call number. In a program-length commercial, the 
disclosure shall be delivered immediately following each delivery of the 
pay-per-call number.
    (c) Sweepstakes; games of chance. (1) The provider of pay-per-call 
services that advertises a prize or award or a service or product at no 
cost or for a reduced cost, to be awarded to the winner of any 
sweepstakes, including games of chance, shall clearly and conspicuously 
disclose in the advertisement the odds of being able to receive the 
prize, award, service, or product at no cost or reduced cost. If the 
odds are not calculable in advance, the advertisement shall disclose the 
factors used in calculating the odds. Either the advertisement or the 
preamble required by Sec.  308.5(a) for such service shall clearly and 
conspicuously disclose that no call to the pay-per-call service is 
required to participate, and shall also disclose the existence of a free 
alternative method of entry, and either instructions on how to enter, or 
a local or toll-free telephone number or address to which consumers may 
call or write for information on how to enter the sweepstakes. Any 
description or characterization of the prize, award, service, or product 
that is being offered at no cost or reduced cost shall be truthful and 
accurate.
    (2) For purposes of Sec.  308.3(c), disclosures shall be made 
``clearly and conspicuously'' as set forth in Sec.  308.3(a) and as 
follows:

[[Page 349]]

    (i) In a television or videotape advertisement, the disclosures may 
be made in either the audio or video portion of the advertisement. If 
the disclosures are made in the video portion, they shall appear on the 
screen in sufficient size and for sufficient time to allow consumers to 
read and comprehend the disclosures.
    (ii) In a print advertisement, the disclosures shall appear in a 
sufficient size and prominence and such location to be readily 
noticeable, readable and comprehensible.
    (d) Federal programs. (1) The provider of pay-per-call services that 
advertises a pay-per-call service that is not operated or expressly 
authorized by a Federal agency, but that provides information on a 
Federal program, shall clearly and conspicuously disclose in the 
advertisement that the pay-per-call service is not authorized, endorsed, 
or approved by any Federal agency. Advertisements providing information 
on a Federal program shall include, but not be limited to, 
advertisements that contain a seal, insignia, trade or brand name, or 
any other term or symbol that reasonably could be interpreted or 
construed as implying any Federal government connection, approval, or 
endorsement.
    (2) For purposes of Sec.  308.3(d), disclosures shall be made 
``clearly and conspicuously'' as set forth in Sec.  308.3(a) and as 
follows:
    (i) In a television or videotape advertisement, the disclosure may 
be made in either the audio or video portion of the advertisement. If 
the disclosure is made in the video portion, it shall appear on the 
screen in sufficient size and for sufficient time to allow consumers to 
read and comprehend the disclosure. The disclosure shall begin within 
the first fifteen (15) seconds of the advertisement.
    (ii) In a print advertisement, the disclosure shall appear in a 
sufficient size and prominence and such location to be readily 
noticeable, readable and comprehensible. The disclosure shall appear in 
the top one-third of the advertisement.
    (iii) In a radio advertisement, the disclosure shall begin within 
the first fifteen (15) seconds of the advertisement.
    (e) Prohibition on advertising to children. (1) The provider of pay-
per-call services shall not direct advertisements for such pay-per-call 
services to children under the age of 12, unless the service is a bona 
fide educational service.
    (2) For the purposes of this regulation, advertisements directed to 
children under 12 shall include: any pay-per-call advertisement 
appearing during or immediately adjacent to programming for which 
competent and reliable audience composition data demonstrate that more 
than 50% of the audience is composed of children under 12, and any pay-
per-call advertisement appearing in a periodical for which competent and 
reliable readership data demonstrate that more than 50% of the 
readership is composed of children under 12.
    (3) For the purposes of this regulation, if competent and reliable 
audience composition or readership data does not demonstrate that more 
than 50% of the audience or readership is composed of children under 12, 
then the Commission shall consider the following criteria in determining 
whether an advertisement is directed to children under 12:
    (i) Whether the advertisement appears in a publication directed to 
children under 12, including, but not limited to, books, magazines and 
comic books;
    (ii) Whether the advertisement appears during or immediately 
adjacent to television programs directed to children under 12, 
including, but not limited to, children's programming as defined by the 
Federal Communications Commission, animated programs, and after-school 
programs;
    (iii) Whether the advertisement appears on a television station or 
channel directed to children under 12;
    (iv) Whether the advertisement is broadcast during or immediately 
adjacent to radio programs directed to children under 12, or broadcast 
on a radio station directed to children under 12;
    (v) Whether the advertisement appears on the same video as a 
commercially-prepared video directed to children under 12, or preceding 
a movie directed to children under 12 shown in a movie theater;

[[Page 350]]

    (vi) Whether the advertisement or promotion appears on product 
packaging directed to children under 12; and
    (vii) Whether the advertisement, regardless of when or where it 
appears, is directed to children under 12 in light of its subject 
matter, visual content, age of models, language, characters, tone, 
message, or the like.
    (f) Advertising to individuals under the age of 18. (1) The provider 
of pay-per-call services shall ensure that any pay-per-call 
advertisement directed primarily to individuals under the age of 18 
shall contain a clear and conspicuous disclosure that all individuals 
under the age of 18 must have the permission of such individual's parent 
or legal guardian prior to calling such pay-per-call service.
    (2) For purposes of Sec.  308.3(f), disclosures shall be made 
``clearly and conspicuously'' as set forth in Sec.  308.3(a) and as 
follows:
    (i) In a television or videotape advertisement, each letter or 
numeral of the video disclosure shall be, at a minimum, one-half the 
size of each letter or numeral of the largest presentation of the pay-
per-call number. The video disclosure shall appear on the screen for 
sufficient time to allow consumers to read and comprehend the 
disclosure. An audio disclosure shall be made at least once, 
simultaneously with a video presentation of the disclosure. However, no 
audio presentation of the disclosure is required in: (A) An 
advertisement fifteen (15) seconds or less in length in which the pay-
per-call number is not presented in the audio portion, or (B) an 
advertisement in which there is no audio presentation of information 
regarding the pay-per-call service, including the pay-per-call number.
    (ii) In a print advertisement, each letter or numeral of the 
disclosure shall be, at a minimum, one-half the size of each letter or 
numeral of the largest presentation of the pay-per-call number.
    (3) For the purposes of this regulation, advertisements directed 
primarily to individuals under 18 shall include: Any pay-per-call 
advertisement appearing during or immediately adjacent to programming 
for which competent and reliable audience composition data demonstrate 
that more than 50% of the audience is composed of individuals under 18, 
and any pay-per-call advertisement appearing in a periodical for which 
competent and reliable readership data demonstrate that more than 50% of 
the readership is composed of individuals under 18.
    (4) For the purposes of this regulation, if competent and reliable 
audience composition or readership data does not demonstrate that more 
than 50% of the audience or readership is composed of individuals under 
18, then the Commission shall consider the following criteria in 
determining whether an advertisement is directed primarily to 
individuals under 18:
    (i) Whether the advertisement appears in publications directed 
primarily to individuals under 18, including, but not limited to, books, 
magazines and comic books;
    (ii) Whether the advertisement appears during or immediately 
adjacent to television programs directed primarily to individuals under 
18, including, but not limited to, mid-afternoon weekday television 
shows;
    (iii) Whether the advertisement is broadcast on radio stations that 
are directed primarily to individuals under 18;
    (iv) Whether the advertisement appears on a cable or broadcast 
television station directed primarily to individuals under 18;
    (v) Whether the advertisement appears on the same video as a 
commercially-prepared video directed primarily to individuals under 18, 
or preceding a movie directed primarily to individuals under 18 shown in 
a movie theater; and
    (vi) Whether the advertisement, regardless of when or where it 
appears, is directed primarily to individuals under 18 in light of its 
subject matter, visual content, age of models, language, characters, 
tone, massage, or the like.
    (g) Electronic tones in advertisements. The provider of pay-per-call 
services is prohibited from using advertisements that emit electronic 
tones that can automatically dial a pay-per-call service.
    (h) Telephone solicitations. The provider of pay-per-call services 
shall ensure that any telephone message that solicits calls to the pay-
per-call service

[[Page 351]]

discloses the cost of the call in a slow and deliberate manner and in a 
reasonably understandable volume, in accordance with Sec. Sec.  
308.3(b)(1)(i)-(v).
    (i) Referral to toll-free telephone numbers. The provider of pay-
per-call services is prohibited from referring in advertisements to an 
800 telephone number, or any other telephone number advertised as or 
widely understood to be toll-free, if that number violates the 
prohibition concerning toll-free numbers set forth in Sec.  308.5(i).



Sec.  308.4  Special rule for infrequent publications.

    (a) The provider of any pay-per-call service that advertises a pay-
per-call service in a publication that meets the requirements set forth 
in Sec.  308.4(c) may include in such advertisement, in lieu of the cost 
disclosures required by Sec.  308.3(b), a clear and conspicuous 
disclosure that a call to the advertised pay-per-call service may result 
in a substantial charge.
    (b) The provider of any pay-per-call service that places an 
alphabetical listing in a publication that meets the requirements set 
forth in Sec.  308.4(c) is not required to make any of the disclosures 
required by Sec. Sec.  308.3 (b), (c), (d) and (f) in the alphabetical 
listing, provided that such listing does not contain any information 
except the name, address and telephone number of the pay-per-call 
provider.
    (c) The publication referred to in Sec.  308.4 (a) and (b) must be:
    (1) Widely distributed;
    (2) Printed annually or less frequently; and
    (3) One that has an established policy of not publishing specific 
prices in advertisements.



Sec.  308.5  Pay-per-call service standards.

    (a) Preamble message. The provider of pay-per-call services shall 
include, in each pay-per-call message, an introductory disclosure 
message (``preamble'') in the same language as that principally used in 
the pay-per-call message, that clearly, in a slow and deliberate manner 
and in a reasonably understandable volume:
    (1) Identifies the name of the provider of the pay-per-call service 
and describes the service being provided;
    (2) Specifies the cost of the service as follows:
    (i) If there is a flat fee for the call, the preamble shall state 
the total cost of the call;
    (ii) If the call is billed on a time-sensitive basis, the preamble 
shall state the cost per minute and any minimum charges; if the length 
of the program can be determined in advance, the preamble shall also 
state the maximum charge that could be incurred if the caller listens to 
the complete program;
    (iii) If the call is billed on a variable rate basis, the preamble 
shall state, in accordance with Sec. Sec.  308.5(a)(2) (i) and (ii), the 
cost of the initial portion of the call, any minimum charges, and the 
range of rates that may be charged depending on the options chosen by 
the caller;
    (iv) Any other fees that will be charged for the service shall be 
disclosed, as well as fees for any other pay-per-call service to which 
the caller may be transferred;
    (3) Informs the caller that charges for the call begin, and that to 
avoid charges the call must be terminated, three seconds after a clearly 
discernible signal or tone indicating the end of the preamble;
    (4) Informs the caller that anyone under the age of 18 must have the 
permission of parent or legal guardian in order to complete the call; 
and
    (5) Informs the caller, in the case of a pay-per-call service that 
is not operated or expressly authorized by a Federal agency but that 
provides information on a Federal program, or that uses a trade or brand 
name or any other term that reasonably could be interpreted or construed 
as implying any Federal government connection, approval or endorsement, 
that the pay-per-call service is not authorized, endorsed, or approved 
by any Federal agency.
    (b) No charge to caller for preamble message. The provider of pay-
per-call services is prohibited from charging a caller any amount 
whatsoever for such a service if the caller hangs up at any time prior 
to three seconds after the signal or tone indicating the end of the 
preamble described in Sec.  308.5(a). However, the three-second delay, 
and the

[[Page 352]]

message concerning such delay described in Sec.  308.5(a)(3), is not 
required if the provider of pay-per-call services offers the caller an 
affirmative means (such as pressing a key on a telephone keypad) of 
indicating a decision to incur the charges.
    (c) Nominal cost calls. The preamble described in Sec.  308.5(a) is 
not required when the entire cost of the pay-per-call service, whether 
billed as a flat rate or on a time sensitive basis, is $2.00 or less.
    (d) Data service calls. The preamble described in Sec.  308.5(a) is 
not required when the entire call consists of the non-verbal 
transmission of information.
    (e) Bypass mechanism. The provider of pay-per-call services that 
offers to frequent callers or regular subscribers to such services the 
option of activating a bypass mechanism to avoid listening to the 
preamble during subsequent calls shall not be deemed to be in violation 
of Sec.  308.5(a), provided that any such bypass mechanism shall be 
disabled for a period of no less than 30 days immediately after the 
institution of an increase in the price for the service or a change in 
the nature of the service offered.
    (f) Billing limitations. The provider of pay-per-call services is 
prohibited from billing consumers in excess of the amount described in 
the preamble for those services and from billing for any services 
provided in violation of any section of this rule.
    (g) Stopping the assessment of time-based charges. The provider of 
pay-per-call services shall stop the assessment of time-based charges 
immediately upon disconnection by the caller.
    (h) Prohibition on services to children. The provider of pay-per-
call services shall not direct such services to children under the age 
of 12, unless such service is a bona fide educational service. The 
Commission shall consider the following criteria in determining whether 
a pay-per-call service is directed to children under 12:
    (1) Whether the pay-per-call service is advertised in the manner set 
forth in Sec. Sec.  308.3(e) (2) and (3); and
    (2) Whether the pay-per-call service, regardless of when or where it 
is advertised, is directed to children under 12, in light of its subject 
matter, content, language, featured personality, characters, tone, 
message, or the like.
    (i) Prohibition concerning toll-free numbers. Any person is 
prohibited from using an 800 number or other telephone number advertised 
as or widely understood to be toll-free in a manner that would result 
in:
    (1) The calling party being assessed, by virtue of completing the 
call, a charge for the call;
    (2) The calling party being connected to an access number for, or 
otherwise transferred to, a pay-per-call service;
    (3) The calling party being charged for information conveyed during 
the call unless the calling party has a presubscription or comparable 
arrangement to be charged for the information; or
    (4) The calling party being called back collect for the provision of 
audio or data information services, simultaneous voice conversation 
services, or products.
    (j) Disclosure requirements for billing statements. The provider of 
pay-per-call services shall ensure that any billing statement for such 
provider's charges shall:
    (1) Display any charges for pay-per-call services in a portion of 
the consumer's bill that is identified as not being related to local and 
long distance telephone charges;
    (2) For each charge so displayed, specify the type of service, the 
amount of the charge, and the date, time, and, for calls billed on a 
time-sensitive basis, the duration of the call; and
    (3) Display the local or toll-free telephone number where consumers 
can obtain answers to their questions and information on their rights 
and obligations with regard to their use of pay-per-call services, and 
can obtain the name and mailing address of the provider of pay-per-call 
services.
    (k) Refunds to consumers. The provider of pay-per-call services 
shall be liable for refunds or credits to consumers who have been billed 
for pay-per-call services, and who have paid the charges for such 
services, pursuant to pay-per-call programs that have been found to have 
violated any provision of this rule or any other Federal rule or law.

[[Page 353]]

    (l) Service bureau liability. A service bureau shall be liable for 
violations of the rule by pay-per-call services using its call 
processing facilities where it knew or should have known of the 
violation.



Sec.  308.6  Access to information.

    Any common carrier that provides telecommunication services to any 
provider of pay-per-call services shall make available to the 
Commission, upon written request, any records and financial information 
maintained by such carrier relating to the arrangements (other than for 
the provision of local exchange service) between such carrier and any 
provider of pay-per-call services.



Sec.  308.7  Billing and collection for pay-per-call services.

    (a) Definitions. For the purposes of this section, the following 
definitions shall apply:
    (1) Billing entity means any person who transmits a billing 
statement to a customer for a telephone-billed purchase, or any person 
who assumes responsibility for receiving and responding to billing error 
complaints or inquiries.
    (2) Billing error means any of the following:
    (i) A reflection on a billing statement of a telephone-billed 
purchase that was not made by the customer nor made from the telephone 
of the customer who was billed for the purchase or, if made, was not in 
the amount reflected on such statement.
    (ii) A reflection on a billing statement of a telephone-billed 
purchase for which the customer requests additional clarification, 
including documentary evidence thereof.
    (iii) A reflection on a billing statement of a telephone-billed 
purchase that was not accepted by the customer or not provided to the 
customer in accordance with the stated terms of the transaction.
    (iv) A reflection on a billing statement of a telephone-billed 
purchase for a call made to an 800 or other toll free telephone number.
    (v) The failure to reflect properly on a billing statement a payment 
made by the customer or a credit issued to the customer with respect to 
a telephone-billed purchase.
    (vi) A computation error or similar error of an accounting nature on 
a billing statement of a telephone-billed purchase.
    (vii) Failure to transmit a billing statement for a telephone-billed 
purchase to a customer's last known address if that address was 
furnished by the customer at least twenty days before the end of the 
billing cycle for which the statement was required.
    (viii) A reflection on a billing statement of a telephone-billed 
purchase that is not identified in accordance with the requirements of 
Sec.  308.5(j).
    (3) Customer means any person who acquires or attempts to acquire 
goods or services in a telephone-billed purchase, or who receives a 
billing statement for a telephone-billed purchase charged to a telephone 
number assigned to that person by a providing carrier.
    (4) Preexisting agreement means a ``presubscription or comparable 
arrangement,'' as that term is defined in Sec.  308.2(e).
    (5) Providing carrier means a local exchange or interexchange common 
carrier providing telephone services (other than local exchange 
services) to a vendor for a telephone-billed purchase that is the 
subject of a billing error complaint or inquiry.
    (6) Telephone-billed purchase means any purchase that is completed 
solely as a consequence of the completion of the call or a subsequent 
dialing, touch tone entry, or comparable action of the caller. Such term 
does not include:
    (i) A purchase by a caller pursuant to a preexisting agreement with 
a vendor;
    (ii) Local exchange telephone services or interexchange telephone 
services or any service that the Federal Communications Commission 
determines by rule--
    (A) Is closely related to the provision of local exchange telephone 
services or interexchange telephone services; and
    (B) Is subject to billing dispute resolution procedures required by 
Federal or state statute or regulation; or
    (iii) The purchase of goods or services that is otherwise subject to 
billing dispute resolution procedures required by Federal statute or 
regulation.

[[Page 354]]

    (7) Vendor means any person who, through the use of the telephone, 
offers goods or services for a telephone-billed purchase.
    (b) Initiation of billing review. A customer may initiate a billing 
review with respect to a telephone-billed purchase by providing the 
billing entity with notice of a billing error no later than 60 days 
after the billing entity transmitted the first billing statement that 
contains a charge for such telephone-billed purchase. If the billing 
error is the reflection on a billing statement of a telephone-billed 
purchase not provided to the customer in accordance with the stated 
terms of the transaction, the 60-day period shall begin to run from the 
date the goods or services are delivered or, if not delivered, should 
have been delivered, if such date is later than the date the billing 
statement was transmitted. A billing error notice shall:
    (1) Set forth or otherwise enable the billing entity to identify the 
customer's name and the telephone number to which the charge was billed;
    (2) Indicate the customer's belief that the statement contains a 
billing error and the type, date, and amount of such; and
    (3) Set forth the reasons for the customer's belief, to the extent 
possible, that the statement contains a billing error.
    (c) Disclosure of method of providing notice; presumption if oral 
notice is permitted. A billing entity shall clearly and conspicuously 
\2\ disclose on each billing statement or on other material accompanying 
the billing statement the method (oral or written) by which the customer 
may provide notice to initiate review of a billing error in the manner 
set forth in Sec.  308.7(b). If oral notice is permitted, any customer 
who orally communicates an allegation of a billing error to a billing 
entity shall be presumed to have properly initiated a billing review in 
accordance with the requirements of Sec.  308.7(b).
---------------------------------------------------------------------------

    \2\ The standard for ``clear and conspicuous'' as used in this 
section shall be the standard enunciated by the Board of Governors of 
the Federal Reserve System in its Official Staff Commentary on 
Regulation Z, which requires simply that the disclosures be in a 
reasonably understandable form. See 12 CFR part 226, Supplement I, 
Comment 226.5(a)(1)-1.
---------------------------------------------------------------------------

    (d) Response to customer notice. A billing entity that receives 
notice of a billing error as described in Sec.  308.7(b) shall:
    (1) Send a written acknowledgement to the customer including a 
statement that any disputed amount need not be paid pending 
investigation of the billing error. This shall be done no later than 
forty (40) days after receiving the notice, unless the action required 
by Sec.  308.7(d)(2) is taken within such 40-day period; and
    (2)(i) Correct the billing error and credit the customer's account 
for any disputed amount and any related charges, and notify the customer 
of the correction. The billing entity also shall disclose to the 
customer that collection efforts may occur despite the credit, and shall 
provide the names, mailing addresses, and business telephone numbers of 
the vendor and providing carrier, as applicable, that are the subject of 
the telephone-billed purchase, or provide the customer with a local or 
toll-free telephone number that the customer may call to obtain this 
information directly. However, the billing entity is not required to 
make the disclosure concerning collection efforts if the vendor, its 
agent, or the providing carrier, as applicable, will not collect or 
attempt to collect the disputed charge; or
    (ii) Transmit an explanation to the customer, after conducting a 
reasonable investigation (including, where appropriate, contacting the 
vendor or providing carrier), \3\ setting forth the reasons why it has 
determined that no

[[Page 355]]

billing error occurred or that a different billing error occurred from 
that asserted, make any appropriate adjustments to the customer's 
account, and, if the customer so requests, provide a written explanation 
and copies of documentary evidence of the customer's indebtedness.
---------------------------------------------------------------------------

    \3\ If a customer submits a billing error notice alleging either the 
nondelivery of goods or services or that information appearing on a 
billing statement has been reported incorrectly to the billing entity, 
the billing entity shall not deny the assertion unless it conducts a 
reasonable investigation and determines that the goods or services were 
actually delivered as agreed or that the information was correct. There 
shall be a rebuttable presumption that goods or services were actually 
delivered to the extent that a vendor or providing carrier produces 
documents prepared and maintained in the ordinary course of business 
showing the date on, and the place to, which the goods or services were 
transmitted or delivered.
---------------------------------------------------------------------------

    (3) The action required by Sec.  308.7(d)(2) shall be taken no later 
than two complete billing cycles of the billing entity (in no event 
later than ninety (90) days) after receiving the notice of the billing 
error and before taking any action to collect the disputed amount, or 
any part thereof. After complying with Sec.  308.7(d)(2), the billing 
entity shall:
    (i) If it is determined that any disputed amount is in error, 
promptly notify the appropriate providing carrier or vendor, as 
applicable, of its disposition of the customer's billing error and the 
reasons therefor; and
    (ii) Promptly notify the customer in writing of the time when 
payment is due of any portion of the disputed amount determined not to 
be in error, which time shall be the longer of ten (10) days or the 
number of days the customer is ordinarily allowed (whether by custom, 
contract or state law) to pay undisputed amounts, and that failure to 
pay such amount may be reported to a credit reporting agency or subject 
the customer to a collection action, if that in fact may happen.
    (e) Withdrawal of billing error notice. A billing entity need not 
comply with the requirements of Sec.  308.7(d) if the customer has, 
after giving notice of a billing error and before the expiration of the 
time limits specified therein, agreed that the billing statement was 
correct or agreed to withdraw voluntarily the billing error notice.
    (f) Limitation on responsibility for billing error. After complying 
with the provisions of Sec.  308.7(d), a billing entity has no further 
responsibility under that section if the customer continues to make 
substantially the same allegation with respect to a billing error.
    (g) Customer's right to withhold disputed amount; limitation on 
collection action. Once the customer has submitted notice of a billing 
error to a billing entity, the customer need not pay, and the billing 
entity, providing carrier, or vendor may not try to collect, any portion 
of any required payment that the customer reasonably believes is related 
to the disputed amount until the billing entity receiving the notice has 
complied with the requirements of Sec.  308.7(d). The billing entity, 
providing carrier, or vendor are not prohibited from taking any action 
to collect any undisputed portion of the bill, or from reflecting a 
disputed amount and related charges on a billing statement, provided 
that the billing statement clearly states that payment of any disputed 
amount or related charges is not required pending the billing entity's 
compliance with Sec.  308.7(d).
    (h) Prohibition on charges for initiating billing review. A billing 
entity, providing carrier, or vendor may not impose on the customer any 
charge related to the billing review, including charges for 
documentation or investigation.
    (i) Restrictions on credit reporting--(1) Adverse credit reports 
prohibited. Once the customer has submitted notice of a billing error to 
a billing entity, a billing entity, providing carrier, vendor, or other 
agent may not report or threaten directly or indirectly to report 
adverse information to any person because of the customer's withholding 
payment of the disputed amount or related charges, until the billing 
entity has met the requirements of Sec.  308.7(d) and allowed the 
customer as many days thereafter to make payment as prescribed by Sec.  
308.7(d)(3)(ii).
    (2) Reports on continuing disputes. If a billing entity receives 
further notice from a customer within the time allowed for payment under 
Sec.  308.7(i)(1) that any portion of the billing error is still in 
dispute, a billing entity, providing carrier, vendor, or other agent may 
not report to any person that the customer's account is delinquent 
because of the customer's failure to pay that disputed amount unless the 
billing entity, providing carrier, vendor, or other agent also reports 
that the amount is in dispute and notifies the customer in writing of 
the name and address of each person to whom the vendor, billing entity, 
providing carrier, or other agent has reported the account as 
delinquent.

[[Page 356]]

    (3) Reporting of dispute resolutions required. A billing entity, 
providing carrier, vendor, or other agent shall report in writing any 
subsequent resolution of any matter reported pursuant to Sec.  
308.7(i)(2) to all persons to whom such matter was initially reported.
    (j) Forfeiture of right to collect disputed amount. Any billing 
entity, providing carrier, vendor, or other agent who fails to comply 
with the requirements of Sec. Sec.  308.7(c), (d), (g), (h), or (i) 
forfeits any right to collect from the customer the amount indicated by 
the customer, under Sec.  308.7(b)(2), to be in error, and any late 
charges or other related charges thereon, up to $50 per transaction.
    (k) Prompt notification of returns and crediting of refunds. When a 
vendor other than the billing entity accepts the return of property or 
forgives a debt for services in connection with a telephone-billed 
purchase, the vendor shall, within seven (7) business days from 
accepting the return or forgiving the debt, either:
    (1) Mail or deliver a cash refund directly to the customer's 
address, and notify the appropriate billing entity that the customer has 
been given a refund, or
    (2) Transmit a credit statement to the billing entity through the 
vendor's normal channels for billing telephone-billed purchases. The 
billing entity shall, within seven (7) business days after receiving a 
credit statement, credit the customer's account with the amount of the 
refund.
    (l) Right of customer to assert claims or defenses. Any billing 
entity or providing carrier who seeks to collect charges from a customer 
for a telephone-billed purchase that is the subject of a dispute between 
the customer and the vendor shall be subject to all claims (other than 
tort claims) and defenses arising out of the transaction and relating to 
the failure to resolve the dispute that the customer could assert 
against the vendor, if the customer has made a good faith attempt to 
resolve the dispute with the vendor or providing carrier (other than the 
billing entity). The billing entity or providing carrier shall not be 
liable under this paragraph for any amount greater than the amount 
billed to the customer for the purchase (including any related charges).
    (m) Retaliatory actions prohibited. A billing entity, providing 
carrier, vendor, or other agent may not accelerate any part of the 
customer's indebtedness or restrict or terminate the customer's access 
to pay-per-call services solely because the customer has exercised in 
good faith rights provided by this section.
    (n) Notice of billing error rights--(1) Annual statement. (i) A 
billing entity shall mail or deliver to each customer, with the first 
billing statement for a telephone-billed purchase mailed or delivered 
after the effective date of these regulations, a statement of the 
customer's billing rights with respect to telephone-billed purchases. 
Thereafter the billing entity shall mail or deliver the billing rights 
statement at least once per calendar year to each customer to whom it 
has mailed or delivered a billing statement for a telephone-billed 
purchase during the previous twelve months. The billing rights statement 
shall disclose that the rights and obligations of the customer and the 
billing entity, set forth therein, are provided under the federal 
Telephone Disclosure and Dispute Resolution Act. The statement shall 
describe the procedure that the customer must follow to notify the 
billing entity of a billing error and the steps that the billing entity 
must take in response to the customer's notice. If the customer is 
permitted to provide oral notice of a billing error, the statement shall 
disclose that a customer who orally communicates an allegation of a 
billing error is presumed to have provided sufficient notice to initiate 
a billing review. The statement shall also disclose the customer's right 
to withhold payment of any disputed amount, and that any action to 
collect any disputed amount will be suspended, pending completion of the 
billing review. The statement shall further disclose the customer's 
rights and obligations if the billing entity determines that no billing 
error occurred, including what action the billing entity may take if the 
customer continues to withhold payment of the disputed amount. 
Additionally, the statement shall inform the customer of the billing 
entity's obligation to forfeit

[[Page 357]]

any disputed amount (up to $50 per transaction) if the billing entity 
fails to follow the billing and collection procedures prescribed by 
Sec.  308.7 of this rule.
    (ii) A billing entity that is a common carrier may comply with Sec.  
308.7(n)(1)(i) by, within 60 days after the effective date of these 
regulations, mailing or delivering the billing rights statement to all 
of its customers and, thereafter, mailing or delivering the billing 
rights statement at least once per calendar year, at intervals of not 
less than 6 months nor more than 18 months, to all of its customers.
    (2) Alternative summary statement. As an alternative to Sec.  
308.7(n)(1), a billing entity may mail or deliver, on or with each 
billing statement, a statement that sets forth the procedure that a 
customer must follow to notify the billing entity of a billing error. 
The statement shall also disclose the customer's right to withhold 
payment of any disputed amount, and that any action to collect any 
disputed amount will be suspended, pending completion of the billing 
review.
    (3) General disclosure requirements. (i) The disclosures required by 
Sec.  308.7(n)(1) shall be made clearly and conspicuously on a separate 
statement that the customer may keep.
    (ii) The disclosures required by Sec.  308.7(n)(2) shall be made 
clearly and conspicuously and may be made on a separate statement or on 
the customer's billing statement. If any of the disclosures are provided 
on the back of the billing statement, the billing entity shall include a 
reference to those disclosures on the front of the statement.
    (iii) At the billing entity's option, additional information or 
explanations may be supplied with the disclosures required by Sec.  
308.7(n), but none shall be stated, utilized, or placed so as to mislead 
or confuse the customer or contradict, obscure, or detract attention 
from the information required to be disclosed. The disclosures required 
by Sec.  308.7(n) shall appear separately and above any other 
disclosures.
    (o) Multiple billing entities. If a telephone-billed purchase 
involves more than one billing entity, only one set of disclosures need 
by given, and the billing entities shall agree among themselves which 
billing entity must comply with the requirements that this regulation 
imposes on any or all of them. The billing entity designated to receive 
and respond to billing errors shall remain the only billing entity 
responsible for complying with the terms of Sec.  308.7(d). If a billing 
entity other than the one designated to receive and respond to billing 
errors receives notice of a billing error as described in Sec.  
308.7(b), that billing entity shall either: (1) Promptly transmit to the 
customer the name, mailing address, and business telephone number of the 
billing entity designated to receive and respond to billing errors; or 
(2) transmit the billing error notice within fifteen (15) days to the 
billing entity designated to receive and respond to billing errors. The 
time requirements in Sec.  308.7(d) shall not begin to run until the 
billing entity designated to receive and respond to billing errors 
receives notice of the billing error, either from the customer or from 
the billing entity to whom the customer transmitted the notice.
    (p) Multiple customers. If there is more than one customer involved 
in a telephone-billed purchase, the disclosures may be made to any 
customer who is primarily liable on the account.



Sec.  308.8  Severability.

    The provisions of this rule are separate and severable from one 
another. If any provision is stayed or determined to be invalid, it is 
the Commission's intention that the remaining provisions shall continue 
in effect.



Sec.  308.9  Rulemaking review.

    No later than four years after the effective date of this Rule, the 
Commission shall initiate a rulemaking review proceeding to evaluate the 
operation of the rule.



PART 309_LABELING REQUIREMENTS FOR ALTERNATIVE FUELS AND ALTERNATIVE 
FUELED VEHICLES--Table of Contents




                            Subpart A_General

Sec.
309.1 Definitions.

[[Page 358]]

309.2 What this part does.
309.3 Stayed or invalid portions.
309.4 Preemption.

              Subpart B_Requirements for Alternative Fuels

 Duties of Importers, Producers, and Refiners of Non-Liquid Alternative 
Vehicle Fuels (Other Than Electricity) and of Manufacturers of Electric 
                     Vehicle Fuel Dispensing Systems

309.10 Alternative vehicle fuel rating.
309.11 Certification.
309.12 Recordkeeping.

 Duties of Distributors of Non-Liquid Alternative Vehicle Fuels (Other 
    Than Electricity) and of Electric Vehicle Fuel Dispensing Systems

309.13 Certification.
309.14 Recordkeeping.

                           Duties of Retailers

309.15 Posting of non-liquid alternative vehicle fuel rating.
309.16 Recordkeeping.

                          Label Specifications

309.17 Labels.

         Subpart C_Requirements for Alternative Fueled Vehicles

309.20 Labeling requirements for new covered vehicles.
309.21 Labeling requirements for used covered vehicles.
309.22 Determining estimated cruising range.
309.23 Recordkeeping.

Appendix A to Part 309--Figures for Part 309

    Authority: 42 U.S.C. 13232(a).

    Source: 60 FR 26955, May 19, 1995, unless otherwise noted.



                            Subpart A_General



Sec.  309.1  Definitions.

    As used in subparts B and C of this part:
    (a) Acquisition includes either of the following:
    (1) Acquiring the beneficial title to a covered vehicle; or
    (2) Acquiring a covered vehicle for transportation purposes pursuant 
to a contract or similar arrangement for a period of 120 days or more.
    (b) Aftermarket conversion system means any combination of hardware 
which allows a vehicle or engine to operate on a fuel other than the 
fuel which the vehicle or engine was originally certified to use.
    (c) Alternative fuel means
    (1) Methanol, denatured ethanol, and other alcohols;
    (2) Mixtures containing 85 percent or more by volume of methanol, 
denatured ethanol, and/or other alcohols (or such other percentage, but 
not less than 70 percent, as determined by the Secretary, by rule, to 
provide for requirements relating to cold start, safety, or vehicle 
functions), with gasoline or other fuels;
    (3) Natural gas;
    (4) Liquefied petroleum gas;
    (5) Hydrogen;
    (6) Coal-derived liquid fuels;
    (7) Fuels (other than alcohol) derived from biological materials;
    (8) Electricity (including electricity from solar energy); and
    (9) Any other fuel the Secretary determines, by rule, is 
substantially not petroleum and would yield substantial energy security 
benefits and substantial environmental benefits.
    (d)(1) Consumer in subpart C means an individual, corporation, 
partnership, association, State, municipality, political subdivision of 
a State, and any agency, department, or instrumentality of the United 
States.
    (2) Consumer or ultimate purchaser in subpart B means, with respect 
to any non-liquid alternative vehicle fuel (including electricity), the 
first person who purchases such fuel for purposes other than resale.
    (e) Conventional fuel means gasoline or diesel fuel.
    (f) Covered vehicle means either of the following:
    (1) A dedicated or dual fueled passenger car (or passenger car 
derivative) capable of seating 12 passengers or less; or
    (2) A dedicated or dual fueled motor vehicle (other than a passenger 
car or passenger car derivative) with a gross vehicle weight rating less 
than 8,500 pounds which has a vehicle curb weight of less than 6,000 
pounds and which has a basic vehicle frontal area of less than 45 square 
feet, which is:

[[Page 359]]

    (i) Designed primarily for purposes of transportation of property or 
is a derivation of such a vehicle; or
    (ii) Designed primarily for transportation of persons and has a 
capacity of more than 12 persons.
    (g) Dedicated means designed to operate solely on alternative fuel.
    (h) Distributor means any person, except a common carrier, who 
receives non-liquid alternative vehicle fuel (other than electricity) 
and distributes such fuel to another person other than the consumer. It 
also means any person, except a common carrier, who receives an electric 
vehicle fuel dispensing system and distributes such system to a 
retailer.
    (i) Dual fueled means capable of operating on alternative fuel and 
capable of operating on conventional fuel.
    (j) Electric charging system equipment means equipment that includes 
an electric battery charger and is used for dispensing electricity to 
consumers for the purpose of recharging batteries in an electric 
vehicle.
    (k) Electric vehicle (``EV'') means a vehicle designed to operate 
exclusively on electricity stored in a rechargeable battery, multiple 
batteries, or battery pack.
    (l) Electric vehicle fuel dispensing system means electric charging 
system equipment or an electrical energy dispensing system.
    (m) Electrical energy dispensing system means equipment that does 
not include an electric charger and is used for dispensing electricity 
to consumers for the purpose of recharging batteries in an electric 
vehicle that contains an on-board electric battery charger.
    (n) Emission certification standard means the emission standard to 
which a covered vehicle has been certified pursuant to 40 CFR parts 86 
and 88.
    (o) Estimated cruising range for non-EVs means a manufacturer's 
reasonable estimate of the number of miles a new covered vehicle will 
travel between refueling, expressed as a lower estimate (i.e., minimum 
estimated cruising range) and an upper estimate (i.e., maximum estimated 
cruising range), as determined by Sec.  309.22. Estimated cruising range 
for EVs means a manufacturer's reasonable estimate of the number of 
miles a new covered EV will travel between recharging, expressed as a 
single estimate, as determined by Sec.  309.22.
    (p) Fuel dispenser means:
    (1) For non-liquid alternative vehicle fuels (other than 
electricity), the dispenser through which a retailer sells the fuel to 
consumers.
    (2) For electric vehicle fuel dispensing systems, the dispenser 
through which a retailer dispenses electricity to consumers for the 
purpose of recharging batteries in an electric vehicle.
    (q) Fuel rating means:
    (1) For non-liquid alternative vehicle fuels (other than 
electricity), including, but not limited to, compressed natural gas and 
hydrogen gas, the commonly used name of the fuel with a disclosure of 
the amount, expressed as a minimum molecular percentage, of the 
principal component of the fuel. A disclosure of other components, 
expressed as a minimum molecular percentage, may be included, if 
desired.
    (2) For electric vehicle fuel dispensing systems, a common 
identifier (such as, but not limited to, ``electricity,'' ``electric 
charging system,'' ``electric charging station'') with a disclosure of 
the system's kilowatt (``kW'') capacity, voltage, whether the voltage is 
alternating current (``ac'') or direct current (``dc''), amperage, and 
whether the system is conductive or inductive.
    (r) Manufacturer means the person who obtains a certificate of 
conformity that the vehicle complies with the standards and requirements 
of 40 CFR parts 86 and 88.
    (s) Manufacturer of an electric vehicle fuel dispensing system means 
any person who manufactures or assembles an electric vehicle fuel 
dispensing system that is distributed specifically for use by retailers 
in dispensing electricity to consumers for the purpose of recharging 
batteries in an electric vehicle.
    (t) New covered vehicle means a covered vehicle which has not been 
acquired by a consumer.
    (u) New vehicle dealer means a person who is engaged in the sale or 
leasing of new covered vehicles.

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    (v) New vehicle label means a window sticker containing the 
information required by Sec.  309.20(e).
    (w) Non-liquid alternative fueled vehicle means a vehicle capable of 
operating on a non-liquid alternative vehicle fuel.
    (x) Non-liquid alternative vehicle fuel means alternative fuel used 
for the purpose of powering a non-liquid alternative fueled vehicle, 
including, but not limited to, compressed natural gas (``CNG''), 
hydrogen gas (``hydrogen''), electricity, and any other non-liquid 
vehicle fuel the Secretary determines, by rule, is substantially not 
petroleum and would yield substantial energy benefits and substantial 
environmental benefits.
    (y) Person means an individual, partnership, corporation, or any 
other business organization.
    (z) Producer means any person who purchases component elements and 
combines them to produce and market non-liquid alternative vehicle fuel 
(other than electricity).
    (aa) Refiner means any person engaged in the production or 
importation of non-liquid alternative vehicle fuel (other than 
electricity).
    (bb) Retailer means any person who offers for sale, sells, or 
distributes non-liquid alternative vehicle fuel (including electricity) 
to consumers.
    (cc) Secretary means the Secretary of the United States Department 
of Energy.
    (dd) Used covered vehicle means a covered vehicle which has been 
acquired by a consumer, but does not include any vehicle sold only for 
scrap or parts (title documents surrendered to the State and a salvage 
certificate issued).
    (ee) Used vehicle dealer means a person engaged in the sale or 
leasing of used covered vehicles who has sold or leased five or more 
used covered vehicles in the previous twelve months, but does not 
include a bank or financial institution, a business selling or leasing 
used covered vehicles to an employee of that business, or a lessor 
selling or leasing a leased vehicle by or to that vehicle's lessee or to 
an employee of the lessee.
    (ff) Used vehicle label means a window sticker containing the 
information required by Sec.  309.21(e).
    (gg) Vehicle fuel tank capacity means the tank's usable capacity 
(i.e., the volume of fuel that can be pumped into the tank through the 
filler pipe with the vehicle on a level surface and with the unusable 
capacity already in the tank). The term does not include unusable 
capacity (i.e., the volume of fuel left at the bottom of the tank when 
the vehicle's fuel pump can no longer draw fuel from the tank), the 
vapor volume of the tank (i.e., the space above the fuel tank filler 
neck), or the volume of the fuel tank filler neck.



Sec.  309.2  What this part does.

    This part establishes labeling requirements for non-liquid 
alternative vehicle fuels, and for certain vehicles powered in whole or 
in part by alternative fuels.



Sec.  309.3  Stayed or invalid portions.

    If any portion of this part is stayed or held invalid, the rest of 
it will stay in force.



Sec.  309.4  Preemption.

    Inconsistent state and local regulations are preempted to the extent 
they would frustrate the purposes of this part.



              Subpart B_Requirements for Alternative Fuels

 Duties of Importers, Producers, and Refiners of Non-Liquid Alternative 
Vehicle Fuels (Other Than Electricity) and of Manufacturers of Electric 
                     Vehicle Fuel Dispensing Systems



Sec.  309.10  Alternative vehicle fuel rating.

    (a) If you are an importer, producer, or refiner of non-liquid 
alternative vehicle fuel (other than electricity), you must determine 
the fuel rating of all non-liquid alternative vehicle fuel (other than 
electricity) before you transfer it. You can do that yourself or through 
a testing lab. To determine fuel ratings, you must possess a reasonable 
basis, consisting of competent and reliable evidence, for the minimum 
percentage of the principal component of the non-liquid alternative 
vehicle fuel (other than electricity) that you must disclose, and for 
the minimum

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percentages of other components that you choose to disclose. For the 
purposes of this section, fuel ratings for the minimum percentage of the 
principal component of compressed natural gas are to be determined in 
accordance with test methods set forth in American Society for Testing 
and Materials (``ASTM'') D 1945-91, ``Standard Test Method for Analysis 
of Natural Gas by Gas Chromatography.'' For the purposes of this 
section, fuel ratings for the minimum percentage of the principal 
component of hydrogen gas are to be determined in accordance with test 
methods set forth in ASTM D 1946-90, ``Standard Practice for Analysis of 
Reformed Gas by Gas Chromatography.'' This incorporation by reference 
was approved by the Director of the Federal Register in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. Copies of D 1945-91 and D 1946-90 may 
be obtained from the American Society for Testing and Materials, 1916 
Race Street, Philadelphia, PA 19103, or may be inspected at the Federal 
Trade Commission, Public Reference Room, room 130, 600 Pennsylvania 
Avenue, NW, Washington, DC, or at the Office of the Federal Register, 
800 North Capitol Street NW., suite 700, Washington, DC.
    (b) If you are a manufacturer of electric vehicle fuel dispensing 
systems, you must determine the fuel rating of the electric charge 
delivered by the electric vehicle fuel dispensing system before you 
transfer such systems. To determine the fuel rating of the electric 
vehicle fuel dispensing system, you must possess a reasonable basis, 
consisting of competent and reliable evidence, for the following output 
information you must disclose: kilowatt (``kW'') capacity, voltage, 
whether the voltage is alternating current (``ac'') or direct current 
(``dc''), amperage, and whether the system is conductive or inductive.



Sec.  309.11  Certification.

    (a) For non-liquid alternative vehicle fuel (other than 
electricity), in each transfer you make to anyone who is not a consumer, 
you must certify the fuel rating of the non-liquid alternative vehicle 
fuel (other than electricity) consistent with your determination. You 
can do this in either of two ways:
    (1) Include a delivery ticket or other paper with each transfer of 
non-liquid alternative vehicle fuel (other than electricity). It may be 
an invoice, bill of lading, bill of sale, terminal ticket, delivery 
ticket, or any other written proof of transfer. It must contain at least 
these four items:
    (i) Your name;
    (ii) The name of the person to whom the non-liquid alternative 
vehicle fuel (other than electricity) is transferred;
    (iii) The date of the transfer; and
    (iv) The fuel rating.
    (2) Give the person a letter or written statement. This letter must 
include the date, your name, the other person's name, and the fuel 
rating of any non-liquid alternative vehicle fuel (other than 
electricity) you will transfer to that person from the date of the 
letter onwards. This letter of certification will be good until you 
transfer non-liquid alternative vehicle fuel (other than electricity) 
with a lower percentage of the principal component, or of any other 
component disclosed in the certification. When this happens, you must 
certify the fuel rating of the new non-liquid alternative vehicle fuel 
(other than electricity) either with a delivery ticket or by sending a 
new letter of certification.
    (b) For electric vehicle fuel dispensing systems, in each transfer 
you make to anyone who is not a consumer, you must certify the fuel 
rating of the electric vehicle fuel dispensing system consistent with 
your determination. You can do this in either of two ways:
    (1) Include a delivery ticket or other paper with each transfer of 
an electric vehicle fuel dispensing system. It may be an invoice, bill 
of lading, bill of sale, delivery ticket, or any other written proof of 
transfer. It must contain at least these five items:
    (i) Your name;
    (ii) The name of the person to whom the electric vehicle fuel 
dispensing system is transferred;
    (iii) The date of the transfer;
    (iv) The model number, serial number, or other identifier of the 
electric vehicle fuel dispensing system; and
    (v) The fuel rating.

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    (2) Make the required certification by placing clearly and 
conspicuously on the electric vehicle fuel dispensing system a permanent 
legible marking or permanently attached label that discloses the 
manufacturer's name, the model number, serial number, or other 
identifier of the system, and the fuel rating. Such marking or label 
must be located where it can be seen after installation of the system. 
The marking or label will be deemed ``legible,'' in terms of placement, 
if it is located in close proximity to the manufacturer's identification 
marking. This marking or label must be in addition to, and not a 
substitute for, the label required to be posted on the electric vehicle 
fuel dispensing system by the retailer.
    (c) When you transfer non-liquid alternative vehicle fuel (other 
than electricity), or an electric vehicle fuel dispensing system, to a 
common carrier, you must certify the fuel rating of the non-liquid 
alternative vehicle fuel (other than electricity) or electric vehicle 
fuel dispensing system to the common carrier, either by letter or on the 
delivery ticket or other paper, or by a permanent marking or label 
attached to the electric vehicle fuel dispensing system by the 
manufacturer.



Sec.  309.12  Recordkeeping.

    You must keep for one year records of how you determined fuel 
ratings. The records must be available for inspection by Federal Trade 
Commission staff members, or by people authorized by FTC.

 Duties of Distributors of Non-Liquid Alternative Vehicle Fuels (Other 
    Than Electricity) and of Electric Vehicle Fuel Dispensing Systems



Sec.  309.13  Certification.

    (a) If you are a distributor of non-liquid alternative vehicle fuel 
(other than electricity), you must certify the fuel rating of the fuel 
in each transfer you make to anyone who is not a consumer. You may 
certify either by using a delivery ticket or other paper with each 
transfer of fuel, as outlined in Sec.  309.11(a)(1), or by using a 
letter of certification, as outlined in Sec.  309.11(a)(2).
    (b) If you are a distributor of electric vehicle fuel dispensing 
systems, you must certify the fuel rating of the system in each transfer 
you make to anyone who is not a consumer. You may certify by using a 
delivery ticket or other paper with each transfer, as outlined in Sec.  
309.11(b)(1), or by using the permanent marking or permanent label 
attached to the system by the manufacturer, as outlined in Sec.  
309.11(b)(2).
    (c) If you do not blend non-liquid alternative vehicle fuels (other 
than electricity), you must certify consistent with the fuel rating 
certified to you. If you blend non-liquid alternative vehicle fuel 
(other than electricity), you must possess a reasonable basis, 
consisting of competent and reliable evidence, as required by Sec.  
309.10(a), for the fuel rating that you certify for the blend.
    (d) When you transfer non-liquid alternative vehicle fuel (other 
than electricity), or an electric vehicle fuel dispensing system, to a 
common carrier, you must certify the fuel rating of the non-liquid 
alternative vehicle fuel (other than electricity) or electric vehicle 
fuel dispensing system to the common carrier, either by letter or on the 
delivery ticket or other paper, or by a permanent marking or label 
attached to the electric vehicle fuel dispensing system by the 
manufacturer. When you receive non-liquid alternative vehicle fuel 
(other than electricity), or an electric vehicle fuel dispensing system, 
from a common carrier, you also must receive from the common carrier a 
certification of the fuel rating of the non-liquid alternative vehicle 
fuel (other than electricity) or electric vehicle fuel dispensing 
system, either by letter or on the delivery ticket or other paper, or by 
a permanent marking or label attached to the electric vehicle fuel 
dispensing system by the manufacturer.



Sec.  309.14  Recordkeeping.

    You must keep for one year any delivery tickets, letters of 
certification, or other paper on which you based your fuel rating 
certifications for non-liquid alternative vehicle fuels (other than 
electricity) and for electric vehicle fuel dispensing systems. You also 
must keep for one year records of any fuel rating determinations you 
made according to Sec.  309.10. If you rely for your

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certification on a permanent marking or permanent label attached to the 
electric vehicle fuel dispensing system by the manufacturer, you must 
not remove or deface the permanent marking or label. The records must be 
available for inspection by Federal Trade Commission staff members, or 
by persons authorized by FTC.

                           Duties of Retailers



Sec.  309.15  Posting of non-liquid alternative vehicle fuel rating.

    (a) If you are a retailer who offers for sale or sells non-liquid 
alternative vehicle fuel (other than electricity) to consumers, you must 
post the fuel rating of each non-liquid alternative vehicle fuel. If you 
are a retailer who offers for sale or sells electricity to consumers 
through an electric vehicle fuel dispensing system, you must post the 
fuel rating of the electric vehicle fuel dispensing system you use. You 
must do this by putting at least one label on the face of each fuel 
dispenser through which you sell non-liquid alternative vehicle fuel. If 
you are selling two or more kinds of non-liquid alternative vehicle 
fuels with different fuel ratings from a single fuel dispenser, you must 
put separate labels for each kind of non-liquid alternative vehicle fuel 
on the face of the fuel dispenser.
    (b)(1) The label, or labels, must be placed conspicuously on the 
fuel dispenser so as to be in full view of consumers and as near as 
reasonably practical to the price per unit of the non-liquid alternative 
vehicle fuel.
    (2) You may petition for an exemption from the placement 
requirements by writing the Secretary of the Federal Trade Commission, 
Washington, DC 20580. You must state the reasons that you want the 
exemption.
    (c) If you do not blend non-liquid alternative vehicle fuels (other 
than electricity), you must post consistent with the fuel rating 
certified to you. If you blend non-liquid alternative vehicle fuel 
(other than electricity), you must possess a reasonable basis, 
consisting of competent and reliable evidence, as required by Sec.  
309.10(a), for the fuel rating that you post for the blend.
    (d)(1) You must maintain and replace labels as needed to make sure 
consumers can easily see and read them.
    (2) If the labels you have are destroyed or are unusable or 
unreadable for some unexpected reason, you may satisfy this part by 
posting a temporary label as much like the required label as possible. 
You must still get and post the required label without delay.
    (e) The following examples of fuel rating disclosures for CNG and 
hydrogen are meant to serve as illustrations of compliance with this 
part, but do not limit the rule's coverage to only the mentioned non-
liquid alternative vehicle fuels (other than electricity):
    (1) ``CNG''

``Minimum''
``XXX%''
``Methane''

    (2) ``Hydrogen''

``Minimum''
``XXX%''
``Hydrogen''

    (f) The following example of fuel rating disclosures for electric 
vehicle fuel dispensing systems is meant to serve as an illustration of 
compliance with this part:

``Electricity''
``XX kW''
``XXX vac/XX amps''
``Inductive''

    (g) When you receive non-liquid alternative vehicle fuel (other than 
electricity), or an electric vehicle fuel dispensing system, from a 
common carrier, you also must receive from the common carrier a 
certification of the fuel rating of the non-liquid alternative vehicle 
fuel (other than electricity) or electric vehicle fuel dispensing 
system, either by letter or on the delivery ticket or other paper, or by 
a permanent marking or label attached to the electric vehicle fuel 
dispensing system by the manufacturer.



Sec.  309.16  Recordkeeping.

    You must keep for one year any delivery tickets, letters of 
certification, or other paper on which you based your posting of fuel 
ratings for non-liquid alternative vehicle fuels. You also must keep for 
one year records of any

[[Page 364]]

fuel rating determinations you made according to Sec.  309.10. If you 
rely for your posting on a permanent marking or permanent label attached 
to the electric vehicle fuel dispensing system by the manufacturer, you 
must not remove or deface the permanent marking or label. The required 
records, other than the permanent marking or label on the electric 
vehicle fuel dispensing system, may be kept at the retail outlet or at a 
reasonably close location. The records, including the permanent marking 
or label on each electric vehicle fuel dispensing system, must be 
available for inspection by Federal Trade Commission staff members or by 
persons authorized by FTC.

                          Label Specifications



Sec.  309.17  Labels.

    All labels must meet the following specifications:
    (a) Layout:
    (1) Non-liquid alternative vehicle fuel (other than electricity) 
labels with disclosure of principal component only. The label is 
3 (7.62 cm) wide x 2\1/2\ (6.35 cm) long. 
``Helvetica black'' type is used throughout. All type is centered. The 
band at the top of the label contains the name of the fuel. This band 
should measure 1 (2.54 cm) deep. Spacing of the fuel name is 
\1/4\ (.64 cm) from the top of the label and \3/
16\ (.48 cm) from the bottom of the black band, centered 
horizontally within the black band. The first line of type beneath the 
black band is \1/8\ (.32 cm) from the bottom of the black 
band. All type below the black band is centered horizontally, with \1/
8\ (.32 cm) between lines. The bottom line of type is \3/
16\ (.48 cm) from the bottom of the label. All type should 
fall no closer than \3/16\ (.48 cm) from the side edges of 
the label. If you wish to change the format of this single component 
label, you must petition the Federal Trade Commission. You can do this 
by writing to the Secretary of the Federal Trade Commission, Washington, 
DC 20580. You must state the size and contents of the label that you 
wish to use, and the reasons that you want to use it.
    (2) Non-liquid alternative vehicle fuel (other than electricity) 
labels with disclosure of two components. The label is 3 
(7.62 cm) wide x 2\1/2\ (6.35 cm) long. ``Helvetica black'' 
type is used throughout. All type is centered. The band at the top of 
the label contains the name of the fuel. This band should measure 
1 (2.54 cm) deep. Spacing of the fuel name is \1/
4\ (.64 cm) from the top of the label and \3/16\ 
(.48 cm) from the bottom of the black band, centered horizontally within 
the black band. The first line of type beneath the black band is \3/
16\ (.48 cm) from the bottom of the black band. All type 
below the black band is centered horizontally, with \1/8\ 
(.32 cm) between lines. The bottom line of type is \1/4\ (.64 
cm) from the bottom of the label. All type should fall no closer than 
\3/16\ (.48 cm) from the side edges of the label. If you wish 
to change the format of this two component label, you must petition the 
Federal Trade Commission. You can do this by writing to the Secretary of 
the Federal Trade Commission, Washington, DC 20580. You must state the 
size and contents of the label that you wish to use, and the reasons 
that you want to use it.
    (3) Electric vehicle fuel dispensing system labels. The label is 
3 (7.62 cm) wide x 2\1/2\ (6.35 cm) long. 
``Helvetica black'' type is used throughout. All type is centered. The 
band at the top of the label contains the common identifier of the fuel. 
This band should measure 1 (2.54 cm) deep. Spacing of the 
common identifier is \1/4\ (.64 cm) from the top of the label 
and \3/16\ (.48 cm) from the bottom of the black band, 
centered horizontally within the black band. The first line of type 
beneath the black band is \3/16\ (.48 cm) from the bottom of 
the black band. All type below the black band is centered horizontally, 
with \1/8\ (.32 cm) between lines. The bottom line of type is 
\1/4\ (.64 cm) from the bottom of the label. All type should 
fall no closer than \3/16\ (.48 cm) from the side edges of 
the label.
    (b) Type size and setting:
    (1) Labels for non-liquid alternative vehicle fuels (other than 
electricity) with disclosure of principal component only. All type 
should be set in upper case (all caps) ``Helvetica Black'' throughout. 
Helvetica Black is available in a variety of computer desk-top and 
photo-typesetting systems. Its name may vary, but the type must conform 
in

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style and thickness to the sample provided here. The spacing between 
letters and words should be set as ``normal.'' The type for the fuel 
name is 50 point (\1/2\ (1.27 cm) cap height) knocked out of 
a 1 (2.54 cm) deep band. The type for the words ``MINIMUM'' 
and the principal component is 24 pt. (\1/4\ (.64 cm) cap 
height). The type for percentage is 36 pt. (\3/8\ (.96 cm) 
cap height).
    (2) Labels for non-liquid alternative vehicle fuels (other than 
electricity) with disclosure of two components. All type should be set 
in upper case (all caps) ``Helvetica Black'' throughout. Helvetica Black 
is available in a variety of computer desk-top and photo-typesetting 
systems. Its name may vary, but the type must conform in style and 
thickness to the sample provided here. The spacing between letters and 
words should be set as ``normal.'' The type for the fuel name is 50 
point (\1/2\ 1.27 cm) cap height) knocked out of a 
1 (2.54 cm) deep band. All other type is 24 pt. (\1/
4\ (.64 cm) cap height).
    (3) Labels for electric vehicle fuel dispensing systems. All type 
should be set in upper case (all caps) ``Helvetica Black'' throughout. 
Helvetica Black is available in a variety of computer desk-top and 
photo-typesetting systems. Its name may vary, but the type must conform 
in style and thickness to the sample provided here. The spacing between 
letters and words should be set as ``normal.'' The type for the common 
identifier is 50 point (\1/2\ 1.27 cm) cap height) knocked 
out of a 1 (2.54 cm) deep band. All other type is 24 pt. (\1/
4\ (.64 cm) cap height).
    (c) Colors: The background color on the labels for all non-liquid 
alternative vehicle fuels (including electricity), and the color of the 
knock-out type within the black band, is Orange: PMS 1495. All other 
type is process black. All borders are process black. All colors must be 
non-fade.
    (d) Contents. Examples of the contents are shown in Figures 1 
through 3. The proper fuel rating for each non-liquid alternative 
vehicle fuel (including electricity) must be shown. No marks or 
information other than that called for by this part may appear on the 
labels.
    (e) Special label protection. All labels must be capable of 
withstanding extremes of weather conditions for a period of at least one 
year. They must be resistant to vehicle fuel, oil, grease, solvents, 
detergents, and water.
    (f) Illustrations of labels. Labels must meet the specifications in 
this section and look like Figures 1 through 3 of appendix A, except the 
black print should be on the appropriately colored background.



         Subpart C_Requirements for Alternative Fueled Vehicles



Sec.  309.20  Labeling requirements for new covered vehicles.

    (a) Affixing and maintaining labels. (1) Before offering a new 
covered vehicle for acquisition to consumers, manufacturers shall affix 
or cause to be affixed, and new vehicle dealers shall maintain or cause 
to be maintained, a new vehicle label on a visible surface of each such 
vehicle.
    (2) If an aftermarket conversion system is installed on a vehicle by 
a person other than the manufacturer prior to such vehicle's being 
acquired by a consumer, the manufacturer shall provide that person with 
the vehicle's estimated cruising range (as determined by Sec.  309.22(a) 
for dedicated vehicles and Sec.  309.22(b) for dual fueled vehicles) and 
emission certification standard and ensure that new vehicle labels are 
affixed to such vehicles as required by paragraph (a) of this section.
    (b) Layout. Figures 4 through 6 of appendix A are prototype labels 
that demonstrate the proper layout. All positioning, spacing, type size, 
and line widths shall be similar to and consistent with the prototype 
labels. Labels required by this section are two-sided and rectangular in 
shape measuring 7 inches (17.5 cm) wide and 5-1/2 inches (13.75 cm) 
long. Figure 4 of appendix A represents the prototype for the front side 
of the labels for dedicated vehicles. Figures 5 and 5.1 of appendix A 
represent the prototype of the front side of the labels for dual-fueled 
vehicles; Figure 5 of appendix A represents the prototype for vehicles 
with one fuel tank and Figure 5.1 of appendix A represents the prototype 
for vehicles with two fuel tanks. Figure 6 of appendix A represents the 
prototype of the back side of the labels for

[[Page 366]]

bothdedicated and dual-fueled vehicles. Manufacturers may, at their 
discretion, display the appropriate front label format and back label 
format immediately adjacent to each other on the same visible surface. 
No marks or information other than that specified in this subpart shall 
appear on this label.
    (c) Type size and setting. The Helvetica Condensed and Helvetica 
family typefaces or equivalent shall be used exclusively on the label. 
Specific type sizes and faces to be used are indicated on the prototype 
labels (Figures 4, 5, 5.1, and 6 of appendix A). No hyphenation should 
be used in setting headline or text copy. Positioning and spacing should 
follow the prototypes closely.
    (d) Colors and Paper Stock. All labels shall be printed in process 
black ink on Hammermill Offset Opaque Vellum/S.70 Sky Blue (or 
equivalent) paper. Follow label prototypes for percentages of screen 
tints in Exhaust Emissions chart.
    (e) Content (1) Headlines and text, as illustrated in Figures 4, 5, 
5.1, and 6 of appendix A, are standard for all labels.
    (2) Estimated cruising range. (i) For dedicated vehicles, determined 
in accordance with Sec.  309.22(a).
    (ii) For dual fueled vehicles, determined in accordance with Sec.  
309.22(b).
    (3) Emission certification standard. (i) For vehicles not certified 
as meeting an EPA emissions standard, indicated by placing a mark in the 
appropriate box indicating that fact.
    (ii) For vehicles certified as meeting an EPA emissions standard, 
indicated by placing a mark in the appropriate box indicating that fact 
and by placing a caret above the standard to which that vehicle has been 
certified.



Sec.  309.21  Labeling requirements for used covered vehicles.

    (a) Affixing and maintaining labels. Before offering a used covered 
vehicle for acquisition to consumers, used vehicle dealers shall affix 
and maintain, or cause to be affixed and maintained, a used vehicle 
label on a visible surface of each such vehicle.
    (b) Layout. Figures 7 and 8 of appendix A are prototype labels that 
demonstrate the proper layout. All positioning, spacing, type size, and 
line widths should be similar to and consistent with the prototype 
labels. Labels required by this section are two-sided and rectangular in 
shape measuring 7 inches (17.5 cm) in width and 5-1/2 inches (13.75 cm) 
in height. Figure 7 represents the prototype of the front side of the 
labels for used covered vehicles. Figure 8 represents the back side of 
the labels for used covered vehicles. Manufacturers may, at their 
discretion, display the appropriate front label format and back label 
format immediately adjacent to each other on the same visible surface. 
No marks or information other than that specified in this subpart shall 
appear on this label.
    (c) Type size and setting. The Helvetica Condensed and Helvetica 
family typefaces or equivalent shall be used exclusively on the label. 
Specific type sizes and faces to be used are indicated on the prototype 
labels (Figures 7 and 8 of appendix A). No hyphenation should be used in 
setting headline or text copy. Positioning and spacing should follow the 
prototypes closely.
    (d) Colors and Paper Stock. All labels shall be printed in process 
black ink on Hammermill Offset Opaque Vellum/S.70 Sky Blue (or 
equivalent) paper.
    (e) Contents. Headlines and text, as illustrated in Figures 7 and 8 
of appendix A, are standard for all labels.



Sec.  309.22  Determining estimated cruising range.

    (a) Dedicated vehicles. (1) Estimated cruising range values for 
dedicated vehicles required to comply with the provisions of 40 CFR part 
600 are to be calculated in accordance with the following:
    (i) The lower range value shall be determined by multiplying the 
vehicle's estimated city fuel-economy by its fuel tank capacity, then 
rounding to the next lower integer value.
    (ii) The upper range value shall be determined by multiplying the 
vehicle's estimated highway fuel-economy by its fuel tank capacity, then 
rounding to the next higher integer value.
    (2) Estimated cruising range for an EV is the actual vehicle range 
determined in accordance with test methods

[[Page 367]]

set forth in Society of Automotive Engineers (``SAE'') Surface Vehicle 
Recommended Practice SAE J1634-1993-05-20, ``Electric Vehicle Energy 
Consumption and Range Test Procedure.'' This incorporation by reference 
was approved by the Director of the Federal Register in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. Copies of SAE J1634-1993-05-20 may be 
obtained from the Society of Automotive Engineers, 400 Commonwealth 
Drive, Warrendale, PA, 15096-0001, or may be inspected at the Federal 
Trade Commission, Public Reference Room, room 130, 600 Pennsylvania 
Avenue, NW, Washington, DC, or at the Office of the Federal Register, 
800 North Capitol Street, NW, suite 700, Washington, DC.
    (3) To determine the estimated cruising range values for dedicated 
vehicles not required to comply with the provisions of 40 CFR part 600 
(other than electric vehicles), you must possess a reasonable basis, 
consisting of competent and reliable evidence that substantiates the 
minimum and maximum number of miles the vehicle will travel between 
refuelings or rechargings that is claimed.
    (b) Dual-fueled vehicles. (1) Estimated cruising range values for 
dual-fueled vehicles required to comply with the provisions of 40 CFR 
part 600 are to be calculated in accordance with the following:
    (i) The lower range value for the vehicle while operating 
exclusively on alternative fuel shall be determined by multiplying the 
vehicle's estimated city fuel-economy by its alternative-fuel tank 
capacity, then rounding to the next lower integer value.
    (ii) The upper range value for the vehicle while operating 
exclusively on alternative fuel shall be determined by multiplying the 
vehicle's estimated highway fuel-economy by its alternative-fuel tank 
capacity, then rounding to the next higher integer value.
    (iii) The lower range value for the vehicle while operating 
exclusively on conventional fuel shall be determined by multiplying the 
vehicle's estimated city fuel-economy by its conventional-fuel tank 
capacity, then rounding to the next lower integer value.
    (iv) The upper range value for the vehicle while operating 
exclusively on conventional fuel shall be determined by multiplying the 
vehicle's estimated highway fuel-economy by its conventional-fuel tank 
capacity, then rounding to the next higher integer value.
    (2) [Reserved]
    (3) To determine the estimated cruising range values for dual-fueled 
vehicles not required to comply with the provisions of 40 CFR part 600 
(other than electric vehicles), you must possess a reasonable basis, 
consisting of competent and reliable evidence, of:
    (i) The minimum and maximum number of miles the vehicle will travel 
between refuelings or rechargings when operated exclusively on 
alternative fuel, and
    (ii) The minimum and maximum number of miles the vehicle will travel 
between refuelings or rechargings when operated exclusively on 
conventional fuel.



Sec.  309.23  Recordkeeping.

    Manufacturers required to comply this subpart shall establish, 
maintain, and retain copies of all data, reports, records, and 
procedures used to meet the requirements of this subpart for three years 
after the end of the model year to which they relate. They must be 
available for inspection by Federal Trade Commission staff members, or 
by people authorized by the Federal Trade Commission.

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PART 310_TELEMARKETING SALES RULE--Table of Contents




Sec.
310.1 Scope of regulations in this part.
310.2 Definitions.
310.3 Deceptive telemarketing acts or practices.
310.4 Abusive telemarketing acts or practices.
310.5 Recordkeeping requirements.
310.6 Exemptions.
310.7 Actions by states and private persons.
310.8 Fee for access to ``do-not-call'' registry.
310.9 Severability.

    Authority: 15 U.S.C. 6101-6108.

    Source: 68 FR 4669, Jan. 29, 2003, unless otherwise noted.



Sec.  310.1  Scope of regulations in this part.

    This part implements the Telemarketing and Consumer Fraud and Abuse 
Prevention Act, 15 U.S.C. 6101-6108, as amended.



Sec.  310.2  Definitions.

    (a) Acquirer means a business organization, financial institution, 
or an agent of a business organization or financial institution that has 
authority from an organization that operates or licenses a credit card 
system to authorize merchants to accept, transmit, or process payment by 
credit card through the credit card system for money, goods or services, 
or anything else of value.
    (b) Attorney General means the chief legal officer of a state.
    (c) Billing information means any data that enables any person to 
access a customer's or donor's account, such as a credit card, checking, 
savings, share or similar account, utility bill, mortgage loan account, 
or debit card.

[[Page 375]]

    (d) Caller identification service means a service that allows a 
telephone subscriber to have the telephone number, and, where available, 
name of the calling party transmitted contemporaneously with the 
telephone call, and displayed on a device in or connected to the 
subscriber's telephone.
    (e) Cardholder means a person to whom a credit card is issued or who 
is authorized to use a credit card on behalf of or in addition to the 
person to whom the credit card is issued.
    (f) Charitable contribution means any donation or gift of money or 
any other thing of value.
    (g) Commission means the Federal Trade Commission.
    (h) Credit means the right granted by a creditor to a debtor to 
defer payment of debt or to incur debt and defer its payment.
    (i) Credit card means any card, plate, coupon book, or other credit 
device existing for the purpose of obtaining money, property, labor, or 
services on credit.
    (j) Credit card sales draft means any record or evidence of a credit 
card transaction.
    (k) Credit card system means any method or procedure used to process 
credit card transactions involving credit cards issued or licensed by 
the operator of that system.
    (l) Customer means any person who is or may be required to pay for 
goods or services offered through telemarketing.
    (m) Donor means any person solicited to make a charitable 
contribution.
    (n) Established business relationship means a relationship between a 
seller and a consumer based on:
    (1) the consumer's purchase, rental, or lease of the seller's goods 
or services or a financial transaction between the consumer and seller, 
within the eighteen (18) months immediately preceding the date of a 
telemarketing call; or
    (2) the consumer's inquiry or application regarding a product or 
service offered by the seller, within the three (3) months immediately 
preceding the date of a telemarketing call.
    (o) Free-to-pay conversion means, in an offer or agreement to sell 
or provide any goods or services, a provision under which a customer 
receives a product or service for free for an initial period and will 
incur an obligation to pay for the product or service if he or she does 
not take affirmative action to cancel before the end of that period.
    (p) Investment opportunity means anything, tangible or intangible, 
that is offered, offered for sale, sold, or traded based wholly or in 
part on representations, either express or implied, about past, present, 
or future income, profit, or appreciation.
    (q) Material means likely to affect a person's choice of, or conduct 
regarding, goods or services or a charitable contribution.
    (r) Merchant means a person who is authorized under a written 
contract with an acquirer to honor or accept credit cards, or to 
transmit or process for payment credit card payments, for the purchase 
of goods or services or a charitable contribution.
    (s) Merchant agreement means a written contract between a merchant 
and an acquirer to honor or accept credit cards, or to transmit or 
process for payment credit card payments, for the purchase of goods or 
services or a charitable contribution.
    (t) Negative option feature means, in an offer or agreement to sell 
or provide any goods or services, a provision under which the customer's 
silence or failure to take an affirmative action to reject goods or 
services or to cancel the agreement is interpreted by the seller as 
acceptance of the offer.
    (u) Outbound telephone call means a telephone call initiated by a 
telemarketer to induce the purchase of goods or services or to solicit a 
charitable contribution.
    (v) Person means any individual, group, unincorporated association, 
limited or general partnership, corporation, or other business entity.
    (w) Preacquired account information means any information that 
enables a seller or telemarketer to cause a charge to be placed against 
a customer's or donor's account without obtaining the account number 
directly from the customer or donor during the telemarketing transaction 
pursuant to which the account will be charged.
    (x) Prize means anything offered, or purportedly offered, and given, 
or purportedly given, to a person by chance.

[[Page 376]]

For purposes of this definition, chance exists if a person is guaranteed 
to receive an item and, at the time of the offer or purported offer, the 
telemarketer does not identify the specific item that the person will 
receive.
    (y) Prize promotion means:
    (1) A sweepstakes or other game of chance; or
    (2) An oral or written express or implied representation that a 
person has won, has been selected to receive, or may be eligible to 
receive a prize or purported prize.
    (z) Seller means any person who, in connection with a telemarketing 
transaction, provides, offers to provide, or arranges for others to 
provide goods or services to the customer in exchange for consideration.
    (aa) State means any state of the United States, the District of 
Columbia, Puerto Rico, the Northern Mariana Islands, and any territory 
or possession of the United States.
    (bb) Telemarketer means any person who, in connection with 
telemarketing, initiates or receives telephone calls to or from a 
customer or donor.
    (cc) Telemarketing means a plan, program, or campaign which is 
conducted to induce the purchase of goods or services or a charitable 
contribution, by use of one or more telephones and which involves more 
than one interstate telephone call. The term does not include the 
solicitation of sales through the mailing of a catalog which: contains a 
written description or illustration of the goods or services offered for 
sale; includes the business address of the seller; includes multiple 
pages of written material or illustrations; and has been issued not less 
frequently than once a year, when the person making the solicitation 
does not solicit customers by telephone but only receives calls 
initiated by customers in response to the catalog and during those calls 
takes orders only without further solicitation. For purposes of the 
previous sentence, the term ``further solicitation'' does not include 
providing the customer with information about, or attempting to sell, 
any other item included in the same catalog which prompted the 
customer's call or in a substantially similar catalog.
    (dd) Upselling means soliciting the purchase of goods or services 
following an initial transaction during a single telephone call. The 
upsell is a separate telemarketing transaction, not a continuation of 
the initial transaction. An ``external upsell'' is a solicitation made 
by or on behalf of a seller different from the seller in the initial 
transaction, regardless of whether the initial transaction and the 
subsequent solicitation are made by the same telemarketer. An ``internal 
upsell'' is a solicitation made by or on behalf of the same seller as in 
the initial transaction, regardless of whether the initial transaction 
and subsequent solicitation are made by the same telemarketer.



Sec.  310.3  Deceptive telemarketing acts or practices.

    (a) Prohibited deceptive telemarketing acts or practices. It is a 
deceptive telemarketing act or practice and a violation of this Rule for 
any seller or telemarketer to engage in the following conduct:
    (1) Before a customer pays \1\ for goods or services offered, 
failing to disclose truthfully, in a clear and conspicuous manner, the 
following material information:
---------------------------------------------------------------------------

    \1\ When a seller or telemarketer uses, or directs a customer to 
use, a courier to transport payment, the seller or telemarketer must 
make the disclosures required by Sec.  310.3(a)(1) before sending a 
courier to pick up payment or authorization for payment, or directing a 
customer to have a courier pick up payment or authorization for payment.
---------------------------------------------------------------------------

    (i) The total costs to purchase, receive, or use, and the quantity 
of, any goods or services that are the subject of the sales offer; \2\
---------------------------------------------------------------------------

    \2\ For offers of consumer credit products subject to the Truth in 
Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z, 12 CFR 226, 
compliance with the disclosure requirements under the Truth in Lending 
Act and Regulation Z shall constitute compliance with Sec.  
310.3(a)(1)(i) of this Rule.
---------------------------------------------------------------------------

    (ii) All material restrictions, limitations, or conditions to 
purchase, receive, or use the goods or services that are the subject of 
the sales offer;
    (iii) If the seller has a policy of not making refunds, 
cancellations, exchanges, or repurchases, a statement informing the 
customer that this is the

[[Page 377]]

seller's policy; or, if the seller or telemarketer makes a 
representation about a refund, cancellation, exchange, or repurchase 
policy, a statement of all material terms and conditions of such policy;
    (iv) In any prize promotion, the odds of being able to receive the 
prize, and, if the odds are not calculable in advance, the factors used 
in calculating the odds; that no purchase or payment is required to win 
a prize or to participate in a prize promotion and that any purchase or 
payment will not increase the person's chances of winning; and the no-
purchase/no-payment method of participating in the prize promotion with 
either instructions on how to participate or an address or local or 
toll-free telephone number to which customers may write or call for 
information on how to participate;
    (v) All material costs or conditions to receive or redeem a prize 
that is the subject of the prize promotion;
    (vi) In the sale of any goods or services represented to protect, 
insure, or otherwise limit a customer's liability in the event of 
unauthorized use of the customer's credit card, the limits on a 
cardholder's liability for unauthorized use of a credit card pursuant to 
15 U.S.C. 1643; and
    (vii) If the offer includes a negative option feature, all material 
terms and conditions of the negative option feature, including, but not 
limited to, the fact that the customer's account will be charged unless 
the customer takes an affirmative action to avoid the charge(s), the 
date(s) the charge(s) will be submitted for payment, and the specific 
steps the customer must take to avoid the charge(s).
    (2) Misrepresenting, directly or by implication, in the sale of 
goods or services any of the following material information:
    (i) The total costs to purchase, receive, or use, and the quantity 
of, any goods or services that are the subject of a sales offer;
    (ii) Any material restriction, limitation, or condition to purchase, 
receive, or use goods or services that are the subject of a sales offer;
    (iii) Any material aspect of the performance, efficacy, nature, or 
central characteristics of goods or services that are the subject of a 
sales offer;
    (iv) Any material aspect of the nature or terms of the seller's 
refund, cancellation, exchange, or repurchase policies;
    (v) Any material aspect of a prize promotion including, but not 
limited to, the odds of being able to receive a prize, the nature or 
value of a prize, or that a purchase or payment is required to win a 
prize or to participate in a prize promotion;
    (vi) Any material aspect of an investment opportunity including, but 
not limited to, risk, liquidity, earnings potential, or profitability;
    (vii) A seller's or telemarketer's affiliation with, or endorsement 
or sponsorship by, any person or government entity;
    (viii) That any customer needs offered goods or services to provide 
protections a customer already has pursuant to 15 U.S.C. 1643; or
    (ix) Any material aspect of a negative option feature including, but 
not limited to, the fact that the customer's account will be charged 
unless the customer takes an affirmative action to avoid the charge(s), 
the date(s) the charge(s) will be submitted for payment, and the 
specific steps the customer must take to avoid the charge(s).
    (3) Causing billing information to be submitted for payment, or 
collecting or attempting to collect payment for goods or services or a 
charitable contribution, directly or indirectly, without the customer's 
or donor's express verifiable authorization, except when the method of 
payment used is a credit card subject to protections of the Truth in 
Lending Act and Regulation Z, \3\ or a debit card subject to the 
protections of the Electronic Fund Transfer Act and Regulation E. \4\ 
Such authorization shall be deemed verifiable if any of the following 
means is employed:
---------------------------------------------------------------------------

    \3\ Truth in Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z, 
12 CFR part 226.
    \4\ Electronic Fund Transfer Act, 15 U.S.C. 1693 et seq., and 
Regulation E, 12 CFR part 205.

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[[Page 378]]

    (i) Express written authorization by the customer or donor, which 
includes the customer's or donor's signature; \5\
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    \5\ For purposes of this Rule, the term ``signature'' shall include 
an electronic or digital form of signature, to the extent that such form 
of signature is recognized as a valid signature under applicable federal 
law or state contract law.
---------------------------------------------------------------------------

    (ii) Express oral authorization which is audio-recorded and made 
available upon request to the customer or donor, and the customer's or 
donor's bank or other billing entity, and which evidences clearly both 
the customer's or donor's authorization of payment for the goods or 
services or charitable contribution that are the subject of the 
telemarketing transaction and the customer's or donor's receipt of all 
of the following information:
    (A) The number of debits, charges, or payments (if more than one);
    (B) The date(s) the debit(s), charge(s), or payment(s) will be 
submitted for payment;
    (C) The amount(s) of the debit(s), charge(s), or payment(s);
    (D) The customer's or donor's name;
    (E) The customer's or donor's billing information, identified with 
sufficient specificity such that the customer or donor understands what 
account will be used to collect payment for the goods or services or 
charitable contribution that are the subject of the telemarketing 
transaction;
    (F) A telephone number for customer or donor inquiry that is 
answered during normal business hours; and
    (G) The date of the customer's or donor's oral authorization; or
    (iii) Written confirmation of the transaction, identified in a clear 
and conspicuous manner as such on the outside of the envelope, sent to 
the customer or donor via first class mail prior to the submission for 
payment of the customer's or donor's billing information, and that 
includes all of the information contained in Sec. Sec.  
310.3(a)(3)(ii)(A)-(G) and a clear and conspicuous statement of the 
procedures by which the customer or donor can obtain a refund from the 
seller or telemarketer or charitable organization in the event the 
confirmation is inaccurate; provided, however, that this means of 
authorization shall not be deemed verifiable in instances in which goods 
or services are offered in a transaction involving a free-to-pay 
conversion and preacquired account information.
    (4) Making a false or misleading statement to induce any person to 
pay for goods or services or to induce a charitable contribution.
    (b) Assisting and facilitating. It is a deceptive telemarketing act 
or practice and a violation of this Rule for a person to provide 
substantial assistance or support to any seller or telemarketer when 
that person knows or consciously avoids knowing that the seller or 
telemarketer is engaged in any act or practice that violates Sec. Sec.  
310.3(a), (c) or (d), or Sec.  310.4 of this Rule.
    (c) Credit card laundering. Except as expressly permitted by the 
applicable credit card system, it is a deceptive telemarketing act or 
practice and a violation of this Rule for:
    (1) A merchant to present to or deposit into, or cause another to 
present to or deposit into, the credit card system for payment, a credit 
card sales draft generated by a telemarketing transaction that is not 
the result of a telemarketing credit card transaction between the 
cardholder and the merchant;
    (2) Any person to employ, solicit, or otherwise cause a merchant, or 
an employee, representative, or agent of the merchant, to present to or 
deposit into the credit card system for payment, a credit card sales 
draft generated by a telemarketing transaction that is not the result of 
a telemarketing credit card transaction between the cardholder and the 
merchant; or
    (3) Any person to obtain access to the credit card system through 
the use of a business relationship or an affiliation with a merchant, 
when such access is not authorized by the merchant agreement or the 
applicable credit card system.
    (d) Prohibited deceptive acts or practices in the solicitation of 
charitable contributions. It is a fraudulent charitable solicitation, a 
deceptive telemarketing act or practice, and a violation of this Rule 
for any telemarketer soliciting charitable contributions to 
misrepresent, directly or by implication, any of the following material 
information:

[[Page 379]]

    (1) The nature, purpose, or mission of any entity on behalf of which 
a charitable contribution is being requested;
    (2) That any charitable contribution is tax deductible in whole or 
in part;
    (3) The purpose for which any charitable contribution will be used;
    (4) The percentage or amount of any charitable contribution that 
will go to a charitable organization or to any particular charitable 
program;
    (5) Any material aspect of a prize promotion including, but not 
limited to: the odds of being able to receive a prize; the nature or 
value of a prize; or that a charitable contribution is required to win a 
prize or to participate in a prize promotion; or
    (6) A charitable organization's or telemarketer's affiliation with, 
or endorsement or sponsorship by, any person or government entity.



Sec.  310.4  Abusive telemarketing acts or practices.

    (a) Abusive conduct generally. It is an abusive telemarketing act or 
practice and a violation of this Rule for any seller or telemarketer to 
engage in the following conduct:
    (1) Threats, intimidation, or the use of profane or obscene 
language;
    (2) Requesting or receiving payment of any fee or consideration for 
goods or services represented to remove derogatory information from, or 
improve, a person's credit history, credit record, or credit rating 
until:
    (i) The time frame in which the seller has represented all of the 
goods or services will be provided to that person has expired; and
    (ii) The seller has provided the person with documentation in the 
form of a consumer report from a consumer reporting agency demonstrating 
that the promised results have been achieved, such report having been 
issued more than six months after the results were achieved. Nothing in 
this Rule should be construed to affect the requirement in the Fair 
Credit Reporting Act, 15 U.S.C. 1681, that a consumer report may only be 
obtained for a specified permissible purpose;
    (3) Requesting or receiving payment of any fee or consideration from 
a person for goods or services represented to recover or otherwise 
assist in the return of money or any other item of value paid for by, or 
promised to, that person in a previous telemarketing transaction, until 
seven (7) business days after such money or other item is delivered to 
that person. This provision shall not apply to goods or services 
provided to a person by a licensed attorney;
    (4) Requesting or receiving payment of any fee or consideration in 
advance of obtaining a loan or other extension of credit when the seller 
or telemarketer has guaranteed or represented a high likelihood of 
success in obtaining or arranging a loan or other extension of credit 
for a person;
    (5) Disclosing or receiving, for consideration, unencrypted consumer 
account numbers for use in telemarketing; provided, however, that this 
paragraph shall not apply to the disclosure or receipt of a customer's 
or donor's billing information to process a payment for goods or 
services or a charitable contribution pursuant to a transaction;
    (6) Causing billing information to be submitted for payment, 
directly or indirectly, without the express informed consent of the 
customer or donor. In any telemarketing transaction, the seller or 
telemarketer must obtain the express informed consent of the customer or 
donor to be charged for the goods or services or charitable contribution 
and to be charged using the identified account. In any telemarketing 
transaction involving preacquired account information, the requirements 
in paragraphs (a)(6)(i) through (ii) of this section must be met to 
evidence express informed consent.
    (i) In any telemarketing transaction involving preacquired account 
information and a free-to-pay conversion feature, the seller or 
telemarketer must:
    (A) obtain from the customer, at a minimum, the last four (4) digits 
of the account number to be charged;
    (B) obtain from the customer his or her express agreement to be 
charged for the goods or services and to be charged using the account 
number pursuant to paragraph (a)(6)(i)(A) of this section; and,
    (C) make and maintain an audio recording of the entire telemarketing 
transaction.

[[Page 380]]

    (ii) In any other telemarketing transaction involving preacquired 
account information not described in paragraph (a)(6)(i) of this 
section, the seller or telemarketer must:
    (A) at a minimum, identify the account to be charged with sufficient 
specificity for the customer or donor to understand what account will be 
charged; and
    (B) obtain from the customer or donor his or her express agreement 
to be charged for the goods or services and to be charged using the 
account number identified pursuant to paragraph (a)(6)(ii)(A) of this 
section; or
    (7) Failing to transmit or cause to be transmitted the telephone 
number, and, when made available by the telemarketer's carrier, the name 
of the telemarketer, to any caller identification service in use by a 
recipient of a telemarketing call; provided that it shall not be a 
violation to substitute (for the name and phone number used in, or 
billed for, making the call) the name of the seller or charitable 
organization on behalf of which a telemarketing call is placed, and the 
seller's or charitable organization's customer or donor service 
telephone number, which is answered during regular business hours.
    (b) Pattern of calls. (1) It is an abusive telemarketing act or 
practice and a violation of this Rule for a telemarketer to engage in, 
or for a seller to cause a telemarketer to engage in, the following 
conduct:
    (i) Causing any telephone to ring, or engaging any person in 
telephone conversation, repeatedly or continuously with intent to annoy, 
abuse, or harass any person at the called number;
    (ii) Denying or interfering in any way, directly or indirectly, with 
a person's right to be placed on any registry of names and/or telephone 
numbers of persons who do not wish to receive outbound telephone calls 
established to comply with Sec.  310.4(b)(1)(iii);
    (iii) Initiating any outbound telephone call to a person when:
    (A) that person previously has stated that he or she does not wish 
to receive an outbound telephone call made by or on behalf of the seller 
whose goods or services are being offered or made on behalf of the 
charitable organization for which a charitable contribution is being 
solicited; or
    (B) that person's telephone number is on the ``do-not-call'' 
registry, maintained by the Commission, of persons who do not wish to 
receive outbound telephone calls to induce the purchase of goods or 
services unless the seller
    (i) has obtained the express agreement, in writing, of such person 
to place calls to that person. Such written agreement shall clearly 
evidence such person's authorization that calls made by or on behalf of 
a specific party may be placed to that person, and shall include the 
telephone number to which the calls may be placed and the signature \6\ 
of that person; or
---------------------------------------------------------------------------

    \6\ For purposes of this Rule, the term ``signature'' shall include 
an electronic or digital form of signature, to the extent that such form 
of signature is recognized as a valid signature under applicable federal 
law or state contract law.
---------------------------------------------------------------------------

    (ii) has an established business relationship with such person, and 
that person has not stated that he or she does not wish to receive 
outbound telephone calls under paragraph (b)(1)(iii)(A) of this section; 
or
    (iv) Abandoning any outbound telephone call. An outbound telephone 
call is ``abandoned'' under this section if a person answers it and the 
telemarketer does not connect the call to a sales representative within 
two (2) seconds of the person's completed greeting.
    (2) It is an abusive telemarketing act or practice and a violation 
of this Rule for any person to sell, rent, lease, purchase, or use any 
list established to comply with Sec.  310.4(b)(1)(iii)(A), or maintained 
by the Commission pursuant to Sec.  310.4(b)(1)(iii)(B), for any purpose 
except compliance with the provisions of this Rule or otherwise to 
prevent telephone calls to telephone numbers on such lists.
    (3) A seller or telemarketer will not be liable for violating Sec.  
310.4(b)(1)(ii) and (iii) if it can demonstrate that, as part of the 
seller's or telemarketer's routine business practice:
    (i) It has established and implemented written procedures to comply 
with Sec.  310.4(b)(1)(ii) and (iii);
    (ii) It has trained its personnel, and any entity assisting in its 
compliance,

[[Page 381]]

in the procedures established pursuant to Sec.  310.4(b)(3)(i);
    (iii) The seller, or a telemarketer or another person acting on 
behalf of the seller or charitable organization, has maintained and 
recorded a list of telephone numbers the seller or charitable 
organization may not contact, in compliance with Sec.  
310.4(b)(1)(iii)(A);
    (iv) The seller or a telemarketer uses a process to prevent 
telemarketing to any telephone number on any list established pursuant 
to Sec. Sec.  310.4(b)(3)(iii) or 310.4(b)(1)(iii)(B), employing a 
version of the ``do-not-call'' registry obtained from the Commission no 
more than three (3) months prior to the date any call is made, and 
maintains records documenting this process;
    (v) The seller or a telemarketer or another person acting on behalf 
of the seller or charitable organization, monitors and enforces 
compliance with the procedures established pursuant to Sec.  
310.4(b)(3)(i); and
    (vi) Any subsequent call otherwise violating Sec.  310.4(b)(1)(ii) 
or (iii) is the result of error.
    (4) A seller or telemarketer will not be liable for violating 
310.4(b)(1)(iv) if:
    (i) the seller or telemarketer employs technology that ensures 
abandonment of no more than three (3) percent of all calls answered by a 
person, measured per day per calling campaign;
    (ii) the seller or telemarketer, for each telemarketing call placed, 
allows the telephone to ring for at least fifteen (15) seconds or four 
(4) rings before disconnecting an unanswered call;
    (iii) whenever a sales representative is not available to speak with 
the person answering the call within two (2) seconds after the person's 
completed greeting, the seller or telemarketer promptly plays a recorded 
message that states the name and telephone number of the seller on whose 
behalf the call was placed \7\; and
---------------------------------------------------------------------------

    \7\ This provision does not affect any seller's or telemarketer's 
obligation to comply with relevant state and federal laws, including but 
not limited to the TCPA, 47 U.S.C. 227, and 47 CFR part 64.1200.
---------------------------------------------------------------------------

    (iv) the seller or telemarketer, in accordance with Sec.  310.5(b)-
(d), retains records establishing compliance with Sec.  310.4(b)(4)(i)-
(iii).
    (c) Calling time restrictions. Without the prior consent of a 
person, it is an abusive telemarketing act or practice and a violation 
of this Rule for a telemarketer to engage in outbound telephone calls to 
a person's residence at any time other than between 8:00 a.m. and 9:00 
p.m. local time at the called person's location.
    (d) Required oral disclosures in the sale of goods or services. It 
is an abusive telemarketing act or practice and a violation of this Rule 
for a telemarketer in an outbound telephone call or internal or external 
upsell to induce the purchase of goods or services to fail to disclose 
truthfully, promptly, and in a clear and conspicuous manner to the 
person receiving the call, the following information:
    (1) The identity of the seller;
    (2) That the purpose of the call is to sell goods or services;
    (3) The nature of the goods or services; and
    (4) That no purchase or payment is necessary to be able to win a 
prize or participate in a prize promotion if a prize promotion is 
offered and that any purchase or payment will not increase the person's 
chances of winning. This disclosure must be made before or in 
conjunction with the description of the prize to the person called. If 
requested by that person, the telemarketer must disclose the no-
purchase/no-payment entry method for the prize promotion; provided, 
however, that, in any internal upsell for the sale of goods or services, 
the seller or telemarketer must provide the disclosures listed in this 
section only to the extent that the information in the upsell differs 
from the disclosures provided in the initial telemarketing transaction.
    (e) Required oral disclosures in charitable solicitations. It is an 
abusive telemarketing act or practice and a violation of this Rule for a 
telemarketer, in an outbound telephone call to induce a charitable 
contribution, to fail to disclose truthfully, promptly, and in a clear 
and conspicuous manner to the person receiving the call, the following 
information:
    (1) The identity of the charitable organization on behalf of which 
the request is being made; and

[[Page 382]]

    (2) That the purpose of the call is to solicit a charitable 
contribution.



Sec.  310.5  Recordkeeping requirements.

    (a) Any seller or telemarketer shall keep, for a period of 24 months 
from the date the record is produced, the following records relating to 
its telemarketing activities:
    (1) All substantially different advertising, brochures, 
telemarketing scripts, and promotional materials;
    (2) The name and last known address of each prize recipient and the 
prize awarded for prizes that are represented, directly or by 
implication, to have a value of $25.00 or more;
    (3) The name and last known address of each customer, the goods or 
services purchased, the date such goods or services were shipped or 
provided, and the amount paid by the customer for the goods or services; 
\8\
---------------------------------------------------------------------------

    \8\ For offers of consumer credit products subject to the Truth in 
Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z, 12 CFR 226, 
compliance with the recordkeeping requirements under the Truth in 
Lending Act, and Regulation Z, shall constitute compliance with Sec.  
310.5(a)(3) of this Rule.
---------------------------------------------------------------------------

    (4) The name, any fictitious name used, the last known home address 
and telephone number, and the job title(s) for all current and former 
employees directly involved in telephone sales or solicitations; 
provided, however, that if the seller or telemarketer permits fictitious 
names to be used by employees, each fictitious name must be traceable to 
only one specific employee; and
    (5) All verifiable authorizations or records of express informed 
consent or express agreement required to be provided or received under 
this Rule.
    (b) A seller or telemarketer may keep the records required by Sec.  
310.5(a) in any form, and in the same manner, format, or place as they 
keep such records in the ordinary course of business. Failure to keep 
all records required by Sec.  310.5(a) shall be a violation of this 
Rule.
    (c) The seller and the telemarketer calling on behalf of the seller 
may, by written agreement, allocate responsibility between themselves 
for the recordkeeping required by this Section. When a seller and 
telemarketer have entered into such an agreement, the terms of that 
agreement shall govern, and the seller or telemarketer, as the case may 
be, need not keep records that duplicate those of the other. If the 
agreement is unclear as to who must maintain any required record(s), or 
if no such agreement exists, the seller shall be responsible for 
complying with Sec. Sec.  310.5(a)(1)-(3) and (5); the telemarketer 
shall be responsible for complying with Sec.  310.5(a)(4).
    (d) In the event of any dissolution or termination of the seller's 
or telemarketer's business, the principal of that seller or telemarketer 
shall maintain all records as required under this Section. In the event 
of any sale, assignment, or other change in ownership of the seller's or 
telemarketer's business, the successor business shall maintain all 
records required under this Section.



Sec.  310.6  Exemptions.

    (a) Solicitations to induce charitable contributions via outbound 
telephone calls are not covered by Sec.  310.4(b)(1)(iii)(B) of this 
Rule.
    (b) The following acts or practices are exempt from this Rule:
    (1) The sale of pay-per-call services subject to the Commission's 
Rule entitled ``Trade Regulation Rule Pursuant to the Telephone 
Disclosure and Dispute Resolution Act of 1992,'' 16 CFR Part 308, 
provided, however, that this exemption does not apply to the 
requirements of Sec.  Sec.  310.4(a)(1), (a)(7), (b), and (c);
    (2) The sale of franchises subject to the Commission's Rule entitled 
``Disclosure Requirements and Prohibitions Concerning Franchising and 
Business Opportunity Ventures,'' (``Franchise Rule'') 16 CFR Part 436, 
provided, however, that this exemption does not apply to the 
requirements of Sec.  Sec.  310.4(a)(1), (a)(7), (b), and (c);
    (3) Telephone calls in which the sale of goods or services or 
charitable solicitation is not completed, and payment or authorization 
of payment is not required, until after a face-to-face sales or donation 
presentation by the seller or charitable organization, provided, 
however, that this exemption does not apply to the requirements of Sec.  
Sec.  310.4(a)(1), (a)(7), (b), and (c);

[[Page 383]]

    (4) Telephone calls initiated by a customer or donor that are not 
the result of any solicitation by a seller, charitable organization, or 
telemarketer, provided, however, that this exemption does not apply to 
any instances of upselling included in such telephone calls;
    (5) Telephone calls initiated by a customer or donor in response to 
an advertisement through any medium, other than direct mail 
solicitation, provided, however, that this exemption does not apply to 
calls initiated by a customer or donor in response to an advertisement 
relating to investment opportunities, business opportunities other than 
business arrangements covered by the Franchise Rule, or advertisements 
involving goods or services described in Sec.  Sec.  310.3(a)(1)(vi) or 
310.4(a)(2)-(4); or to any instances of upselling included in such 
telephone calls;
    (6) Telephone calls initiated by a customer or donor in response to 
a direct mail solicitation, including solicitations via the U.S. Postal 
Service, facsimile transmission, electronic mail, and other similar 
methods of delivery in which a solicitation is directed to specific 
address(es) or person(s), that clearly, conspicuously, and truthfully 
discloses all material information listed in Sec.  310.3(a)(1) of this 
Rule, for any goods or services offered in the direct mail solicitation, 
and that contains no material misrepresentation regarding any item 
contained in Sec.  310.3(d) of this Rule for any requested charitable 
contribution; provided, however, that this exemption does not apply to 
calls initiated by a customer in response to a direct mail solicitation 
relating to prize promotions, investment opportunities, business 
opportunities other than business arrangements covered by the Franchise 
Rule, or goods or services described in Sec. Sec.  310.3(a)(1)(vi) or 
310.4(a)(2)-(4); or to any instances of upselling included in such 
telephone calls; and
    (7) Telephone calls between a telemarketer and any business, except 
calls to induce the retail sale of nondurable office or cleaning 
supplies; provided, however, that Sec.  310.4(b)(1)(iii)(B) and Sec.  
310.5 of this Rule shall not apply to sellers or telemarketers of 
nondurable office or cleaning supplies.



Sec.  310.7  Actions by states and private persons.

    (a) Any attorney general or other officer of a state authorized by 
the state to bring an action under the Telemarketing and Consumer Fraud 
and Abuse Prevention Act, and any private person who brings an action 
under that Act, shall serve written notice of its action on the 
Commission, if feasible, prior to its initiating an action under this 
Rule. The notice shall be sent to the Office of the Director, Bureau of 
Consumer Protection, Federal Trade Commission, Washington, D.C. 20580, 
and shall include a copy of the state's or private person's complaint 
and any other pleadings to be filed with the court. If prior notice is 
not feasible, the state or private person shall serve the Commission 
with the required notice immediately upon instituting its action.
    (b) Nothing contained in this Section shall prohibit any attorney 
general or other authorized state official from proceeding in state 
court on the basis of an alleged violation of any civil or criminal 
statute of such state.



Sec.  310.8  Fee for access to the National Do Not Call Registry.

    (a) It is a violation of this Rule for any seller to initiate, or 
cause any telemarketer to initiate, an outbound telephone call to any 
person whose telephone number is within a given area code unless such 
seller, either directly or through another person, first has paid the 
annual fee, required by Sec.  310.8(c), for access to telephone numbers 
within that area code that are included in the National Do Not Call 
Registry maintained by the Commission under Sec.  310.4(b)(1)(iii)(B); 
provided, however, that such payment is not necessary if the seller 
initiates, or causes a telemarketer to initiate, calls solely to persons 
pursuant to Sec. Sec.  310.4(b)(1)(iii)(B)(i) or (ii), and the seller 
does not access the National Do Not Call Registry for any other purpose.
    (b) It is a violation of this Rule for any telemarketer, on behalf 
of any seller, to initiate an outbound telephone call to any person 
whose telephone number is within a given area code unless that seller, 
either directly or

[[Page 384]]

through another person, first has paid the annual fee, required by Sec.  
310.8(c), for access to the telephone numbers within that area code that 
are included in the National Do Not Call Registry; provided, however, 
that such payment is not necessary if the seller initiates, or causes a 
telemarketer to initiate, calls solely to persons pursuant to Sec. Sec.  
310.4(b)(1)(iii)(B)(i) or (ii), and the seller does not access the 
National Do Not Call Registry for any other purpose.
    (c) The annual fee, which must be paid by any person prior to 
obtaining access to the National Do Not Call Registry, is $25 per area 
code of data accessed, up to a maximum of $7,375; provided, however, 
that there shall be no charge for the first five area codes of data 
accessed by any person, and provided further, that there shall be no 
charge to any person engaging in or causing others to engage in outbound 
telephone calls to consumers and who is accessing the National Do Not 
Call Registry without being required under this Rule, 47 CFR 64.1200, or 
any other federal law. Any person accessing the National Do Not Call 
Registry may not participate in any arrangement to share the cost of 
accessing the registry, including any arrangement with any telemarketer 
or service provider to divide the costs to access the registry among 
various clients of that telemarketer or service provider.
    (d) After a person, either directly or through another person, pays 
the fees set forth in Sec.  310.8(c), the person will be provided a 
unique account number which will allow that person to access the 
registry data for the selected area codes at any time for twelve months 
following the first day of the month in which the person paid the fee 
(``the annual period''). To obtain access to additional area codes of 
data during the first six months of the annual period, the person must 
first pay $25 for each additional area code of data not initially 
selected. To obtain access to additional area codes of data during the 
second six months of the annual period, the person must first pay $15 
for each additional area code of data not initially selected. The 
payment of the additional fee will permit the person to access the 
additional area codes of data for the remainder of the annual period.
    (e) Access to the National Do Not Call Registry is limited to 
telemarketers, sellers, others engaged in or causing others to engage in 
telephone calls to consumers, service providers acting on behalf of such 
persons, and any government agency that has law enforcement authority. 
Prior to accessing the National Do Not Call Registry, a person must 
provide the identifying information required by the operator of the 
registry to collect the fee, and must certify, under penalty of law, 
that the person is accessing the registry solely to comply with the 
provisions of this Rule or to otherwise prevent telephone calls to 
telephone numbers on the registry. If the person is accessing the 
registry on behalf of sellers, that person also must identify each of 
the sellers on whose behalf it is accessing the registry, must provide 
each seller's unique account number for access to the national registry, 
and must certify, under penalty of law, that the sellers will be using 
the information gathered from the registry solely to comply with the 
provisions of this Rule or otherwise to prevent telephone calls to 
telephone numbers on the registry.

[68 FR 45144, July 31, 2003]



Sec.  310.9  Severability.

    The provisions of this Rule are separate and severable from one 
another. If any provision is stayed or determined to be invalid, it is 
the Commission's intention that the remaining provisions shall continue 
in effect.



PART 311_TEST PROCEDURES AND LABELING STANDARDS FOR RECYCLED OIL--Table of Contents




Sec.
311.1 Definitions.
311.2 Stayed or invalid parts.
311.3 Preemption.
311.4 Testing.
311.5 Labeling.
311.6 Prohibited acts.

    Authority: 42 U.S.C. 6363(d).

    Source: 60 FR 55421, Oct. 31, 1995, unless otherwise noted.

[[Page 385]]



Sec.  311.1  Definitions.

    As used in this part:
    (a) Manufacturer means any person who re-refines or otherwise 
processes used oil to remove physical or chemical impurities acquired 
through use or who blends such re-refined or otherwise processed used 
oil with new oil or additives.
    (b) New oil means any synthetic oil or oil that has been refined 
from crude oil and which has not been used and may or may not contain 
additives. Such term does not include used oil or recycled oil.
    (c) Processed used oil means re-refined or otherwise processed used 
oil or blend of oil, consisting of such re-refined or otherwise 
processed used oil and new oil or additives.
    (d) Recycled oil means processed used oil that the manufacturer has 
determined, pursuant to section 311.4 of this part, is substantially 
equivalent to new oil for use as engine oil.
    (e) Used oil means any synthetic oil or oil that has been refined 
from crude oil, which has been used and, as a result of such use, has 
been contaminated by physical or chemical impurities.
    (f) Re-refined oil means used oil from which physical and chemical 
contaminants acquired through use have been removed.



Sec.  311.2  Stayed or invalid parts.

    If any part of this rule is stayed or held invalid, the rest of it 
will remain in force.



Sec.  311.3  Preemption.

    No law, regulation, or order of any State or political subdivision 
thereof may apply, or remain applicable, to any container of recycled 
oil, if such law, regulation, or order requires any container of 
recycled oil, which container bears a label in accordance with the terms 
of Sec.  311.5 of this part, to bear any label with respect to the 
comparative characteristics of such recycled oil with new oil that is 
not identical to that permitted by Sec.  311.5 of this part.



Sec.  311.4  Testing.

    To determine the substantial equivalency of processed used oil with 
new oil for use as engine oil, manufacturers or their designees must use 
the test procedures that were reported to the Commission by the National 
Institute of Standards and Technology (``NIST'') on July 27, 1995, 
entitled ``Engine Oil Licensing and Certification System,'' American 
Petroleum Institute (``API'') Publication 1509, Thirteenth Edition, 
January, 1995. This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. Copies of API Publication 1509, ``Engine Oil Licensing 
and Certification System,'' may be obtained from the American Petroleum 
Institute, 1220 L Street, NW., Washington, DC 20005, or may be inspected 
at the Federal Trade Commission, Public Reference Room, room 130, 600 
Pennsylvania Avenue, NW., Washington, DC, or at the Office of the 
Federal Register,, 800 North Capitol Street NW., suite 700, Washington, 
DC.



Sec.  311.5  Labeling.

    A manufacturer or other seller may represent, on a label on a 
container of processed used oil, that such oil is substantially 
equivalent to new oil for use as engine oil only if the manufacturer has 
determined that the oil is substantially equivalent to new oil for use 
as engine oil in accordance with the NIST test procedures prescribed 
under Sec.  311.4 of this part, and has based the representation on that 
determination.



Sec.  311.6  Prohibited acts.

    It is unlawful for any manufacturer or other seller to represent, on 
a label on a container of processed used oil, that such oil is 
substantially equivalent to new oil for use as engine oil unless the 
manufacturer or other seller has based such representation on the 
manufacturer's determination that the processed used oil is 
substantially equivalent to new oil for use as engine oil in accordance 
with the NIST test procedures prescribed under Sec.  311.4 of this part. 
Violations will be subject to enforcement through civil penalties (as 
adjusted for inflation pursuant to Sec.  1.98 of this chapter), 
imprisonment, and/or injunctive relief in accordance with the 
enforcement provisions of Section 525

[[Page 386]]

of the Energy Policy and Conservation Act (42 U.S.C. 6395).

[60 FR 55421, Oct. 31, 1995, as amended at 65 FR 69666, Nov. 20, 2000]



PART 312_CHILDREN'S ONLINE PRIVACY PROTECTION RULE--Table of Contents




Sec.
312.1 Scope of regulations in this part.
312.2 Definitions.
312.3 Regulation of unfair or deceptive acts or practices in connection 
          with the collection, use, and/or disclosure of personal 
          information from and about children on the Internet.
312.4 Notice.
312.5 Parental consent.
312.6 Right of parent to review personal information provided by a 
          child.
312.7 Prohibition against conditioning a child's participation on 
          collection of personal information.
312.8 Confidentiality, security, and integrity of personal information 
          collected from children.
312.9 Enforcement.
312.10 Safe harbors.
312.11 Rulemaking review.
312.12 Severability.

    Authority: 15 U.S.C. 6501 et seq.

    Source: 64 FR 59911, Nov. 3, 1999, unless otherwise noted.



Sec.  312.1  Scope of regulations in this part.

    This part implements the Children's Online Privacy Protection Act of 
1998, (15 U.S.C. 6501, et seq.,) which prohibits unfair or deceptive 
acts or practices in connection with the collection, use, and/or 
disclosure of personal information from and about children on the 
Internet. The effective date of this part is April 21, 2000.



Sec.  312.2  Definitions.

    Child means an individual under the age of 13.
    Collects or collection means the gathering of any personal 
information from a child by any means, including but not limited to:
    (a) Requesting that children submit personal information online;
    (b) Enabling children to make personal information publicly 
available through a chat room, message board, or other means, except 
where the operator deletes all individually identifiable information 
from postings by children before they are made public, and also deletes 
such information from the operator's records; or
    (c) The passive tracking or use of any identifying code linked to an 
individual, such as a cookie.
    Commission means the Federal Trade Commission.
    Delete means to remove personal information such that it is not 
maintained in retrievable form and cannot be retrieved in the normal 
course of business.
    Disclosure means, with respect to personal information:
    (a) The release of personal information collected from a child in 
identifiable form by an operator for any purpose, except where an 
operator provides such information to a person who provides support for 
the internal operations of the website or online service and who does 
not disclose or use that information for any other purpose. For purposes 
of this definition:
    (1) Release of personal information means the sharing, selling, 
renting, or any other means of providing personal information to any 
third party, and
    (2) Support for the internal operations of the website or online 
service means those activities necessary to maintain the technical 
functioning of the website or online service, or to fulfill a request of 
a child as permitted by Sec.  312.5(c)(2) and (3); or
    (b) Making personal information collected from a child by an 
operator publicly available in identifiable form, by any means, 
including by a public posting through the Internet, or through a 
personal home page posted on a website or online service; a pen pal 
service; an electronic mail service; a message board; or a chat room.
    Federal agency means an agency, as that term is defined in Section 
551(1) of title 5, United States Code.
    Internet means collectively the myriad of computer and 
telecommunications facilities, including equipment and operating 
software, which comprise the interconnected world-wide network of 
networks that employ the Transmission Control Protocol/Internet 
Protocol, or any predecessor or successor protocols to such protocol, to 
communicate information of all kinds

[[Page 387]]

by wire, radio, or other methods of transmission.
    Online contact information means an e-mail address or any other 
substantially similar identifier that permits direct contact with a 
person online.
    Operator means any person who operates a website located on the 
Internet or an online service and who collects or maintains personal 
information from or about the users of or visitors to such website or 
online service, or on whose behalf such information is collected or 
maintained, where such website or online service is operated for 
commercial purposes, including any person offering products or services 
for sale through that website or online service, involving commerce:
    (a) Among the several States or with 1 or more foreign nations;
    (b) In any territory of the United States or in the District of 
Columbia, or between any such territory and
    (1) Another such territory, or
    (2) Any State or foreign nation; or
    (c) Between the District of Columbia and any State, territory, or 
foreign nation. This definition does not include any nonprofit entity 
that would otherwise be exempt from coverage under Section 5 of the 
Federal Trade Commission Act (15 U.S.C. 45).
    Parent includes a legal guardian.
    Person means any individual, partnership, corporation, trust, 
estate, cooperative, association, or other entity.
    Personal information means individually identifiable information 
about an individual collected online, including:
    (a) A first and last name;
    (b) A home or other physical address including street name and name 
of a city or town;
    (c) An e-mail address or other online contact information, including 
but not limited to an instant messaging user identifier, or a screen 
name that reveals an individual's e-mail address;
    (d) A telephone number;
    (e) A Social Security number;
    (f) A persistent identifier, such as a customer number held in a 
cookie or a processor serial number, where such identifier is associated 
with individually identifiable information; or a combination of a last 
name or photograph of the individual with other information such that 
the combination permits physical or online contacting; or
    (g) Information concerning the child or the parents of that child 
that the operator collects online from the child and combines with an 
identifier described in this definition.
    Third party means any person who is not:
    (a) An operator with respect to the collection or maintenance of 
personal information on the website or online service; or
    (b) A person who provides support for the internal operations of the 
website or online service and who does not use or disclose information 
protected under this part for any other purpose.
    Obtaining verifiable consent means making any reasonable effort 
(taking into consideration available technology) to ensure that before 
personal information is collected from a child, a parent of the child:
    (a) Receives notice of the operator's personal information 
collection, use, and disclosure practices; and
    (b) Authorizes any collection, use, and/or disclosure of the 
personal information.
    Website or online service directed to children means a commercial 
website or online service, or portion thereof, that is targeted to 
children. Provided, however, that a commercial website or online 
service, or a portion thereof, shall not be deemed directed to children 
solely because it refers or links to a commercial website or online 
service directed to children by using information location tools, 
including a directory, index, reference, pointer, or hypertext link. In 
determining whether a commercial website or online service, or a portion 
thereof, is targeted to children, the Commission will consider its 
subject matter, visual or audio content, age of models, language or 
other characteristics of the website or online service, as well as 
whether advertising promoting or appearing on the website or online 
service is directed to children. The Commission will also consider 
competent and reliable empirical evidence regarding audience 
composition; evidence regarding the intended audience; and whether a 
site uses animated characters and/or child-oriented activities and 
incentives.

[[Page 388]]



Sec.  312.3  Regulation of unfair or deceptive acts or practices in 

connection with the collection, use, and/or disclosure of personal 
information from and about children on the Internet.

    General requirements. It shall be unlawful for any operator of a 
website or online service directed to children, or any operator that has 
actual knowledge that it is collecting or maintaining personal 
information from a child, to collect personal information from a child 
in a manner that violates the regulations prescribed under this part. 
Generally, under this part, an operator must:
    (a) Provide notice on the website or online service of what 
information it collects from children, how it uses such information, and 
its disclosure practices for such information (Sec.  312.4(b));
    (b) Obtain verifiable parental consent prior to any collection, use, 
and/or disclosure of personal information from children (Sec.  312.5);
    (c) Provide a reasonable means for a parent to review the personal 
information collected from a child and to refuse to permit its further 
use or maintenance (Sec.  312.6);
    (d) Not condition a child's participation in a game, the offering of 
a prize, or another activity on the child disclosing more personal 
information than is reasonably necessary to participate in such activity 
(Sec.  312.7); and
    (e) Establish and maintain reasonable procedures to protect the 
confidentiality, security, and integrity of personal information 
collected from children (Sec.  312.8).



Sec.  312.4  Notice.

    (a) General principles of notice. All notices under Sec. Sec.  
312.3(a) and 312.5 must be clearly and understandably written, be 
complete, and must contain no unrelated, confusing, or contradictory 
materials.
    (b) Notice on the website or online service. Under Sec.  312.3(a), 
an operator of a website or online service directed to children must 
post a link to a notice of its information practices with regard to 
children on the home page of its website or online service and at each 
area on the website or online service where personal information is 
collected from children. An operator of a general audience website or 
online service that has a separate children's area or site must post a 
link to a notice of its information practices with regard to children on 
the home page of the children's area.
    (1) Placement of the notice. (i) The link to the notice must be 
clearly labeled as a notice of the website or online service's 
information practices with regard to children;
    (ii) The link to the notice must be placed in a clear and prominent 
place and manner on the home page of the website or online service; and
    (iii) The link to the notice must be placed in a clear and prominent 
place and manner at each area on the website or online service where 
children directly provide, or are asked to provide, personal 
information, and in close proximity to the requests for information in 
each such area.
    (2) Content of the notice. To be complete, the notice of the website 
or online service's information practices must state the following:
    (i) The name, address, telephone number, and e-mail address of all 
operators collecting or maintaining personal information from children 
through the website or online service. Provided that: the operators of a 
website or online service may list the name, address, phone number, and 
e-mail address of one operator who will respond to all inquiries from 
parents concerning the operators' privacy policies and use of children's 
information, as long as the names of all the operators collecting or 
maintaining personal information from children through the website or 
online service are also listed in the notice;
    (ii) The types of personal information collected from children and 
whether the personal information is collected directly or passively;
    (iii) How such personal information is or may be used by the 
operator(s), including but not limited to fulfillment of a requested 
transaction, recordkeeping, marketing back to the child, or making it 
publicly available through a chat room or by other means;
    (iv) Whether personal information is disclosed to third parties, and 
if so, the

[[Page 389]]

types of business in which such third parties are engaged, and the 
general purposes for which such information is used; whether those third 
parties have agreed to maintain the confidentiality, security, and 
integrity of the personal information they obtain from the operator; and 
that the parent has the option to consent to the collection and use of 
their child's personal information without consenting to the disclosure 
of that information to third parties;
    (v) That the operator is prohibited from conditioning a child's 
participation in an activity on the child's disclosing more personal 
information than is reasonably necessary to participate in such 
activity; and
    (vi) That the parent can review and have deleted the child's 
personal information, and refuse to permit further collection or use of 
the child's information, and state the procedures for doing so.
    (c) Notice to a parent. Under Sec.  312.5, an operator must make 
reasonable efforts, taking into account available technology, to ensure 
that a parent of a child receives notice of the operator's practices 
with regard to the collection, use, and/or disclosure of the child's 
personal information, including notice of any material change in the 
collection, use, and/or disclosure practices to which the parent has 
previously consented.
    (1) Content of the notice to the parent. (i) All notices must state 
the following:
    (A) That the operator wishes to collect personal information from 
the child;
    (B) The information set forth in paragraph (b) of this section.
    (ii) In the case of a notice to obtain verifiable parental consent 
under Sec.  312.5(a), the notice must also state that the parent's 
consent is required for the collection, use, and/or disclosure of such 
information, and state the means by which the parent can provide 
verifiable consent to the collection of information.
    (iii) In the case of a notice under the exception in Sec.  
312.5(c)(3), the notice must also state the following:
    (A) That the operator has collected the child's e-mail address or 
other online contact information to respond to the child's request for 
information and that the requested information will require more than 
one contact with the child;
    (B) That the parent may refuse to permit further contact with the 
child and require the deletion of the information, and how the parent 
can do so; and
    (C) That if the parent fails to respond to the notice, the operator 
may use the information for the purpose(s) stated in the notice.
    (iv) In the case of a notice under the exception in Sec.  
312.5(c)(4), the notice must also state the following:
    (A) That the operator has collected the child's name and e-mail 
address or other online contact information to protect the safety of the 
child participating on the website or online service;
    (B) That the parent may refuse to permit the use of the information 
and require the deletion of the information, and how the parent can do 
so; and
    (C) That if the parent fails to respond to the notice, the operator 
may use the information for the purpose stated in the notice.



Sec.  312.5  Parental consent.

    (a) General requirements. (1) An operator is required to obtain 
verifiable parental consent before any collection, use, and/or 
disclosure of personal information from children, including consent to 
any material change in the collection, use, and/or disclosure practices 
to which the parent has previously consented.
    (2) An operator must give the parent the option to consent to the 
collection and use of the child's personal information without 
consenting to disclosure of his or her personal information to third 
parties.
    (b) Mechanisms for verifiable parental consent. (1) An operator must 
make reasonable efforts to obtain verifiable parental consent, taking 
into consideration available technology. Any method to obtain verifiable 
parental consent must be reasonably calculated, in light of available 
technology, to ensure that the person providing consent is the child's 
parent.

[[Page 390]]

    (2) Methods to obtain verifiable parental consent that satisfy the 
requirements of this paragraph include: providing a consent form to be 
signed by the parent and returned to the operator by postal mail or 
facsimile; requiring a parent to use a credit card in connection with a 
transaction; having a parent call a toll-free telephone number staffed 
by trained personnel; using a digital certificate that uses public key 
technology; and using e-mail accompanied by a PIN or password obtained 
through one of the verification methods listed in this paragraph. 
Provided that: For the period until April 21, 2005, methods to obtain 
verifiable parental consent for uses of information other than the 
``disclosures'' defined by Sec.  312.2 may also include use of e-mail 
coupled with additional steps to provide assurances that the person 
providing the consent is the parent. Such additional steps include: 
sending a confirmatory e-mail to the parent following receipt of 
consent; or obtaining a postal address or telephone number from the 
parent and confirming the parent's consent by letter or telephone call. 
Operators who use such methods must provide notice that the parent can 
revoke any consent given in response to the earlier e-mail.
    (c) Exceptions to prior parental consent. Verifiable parental 
consent is required prior to any collection, use and/or disclosure of 
personal information from a child except as set forth in this paragraph. 
The exceptions to prior parental consent are as follows:
    (1) Where the operator collects the name or online contact 
information of a parent or child to be used for the sole purpose of 
obtaining parental consent or providing notice under Sec.  312.4. If the 
operator has not obtained parental consent after a reasonable time from 
the date of the information collection, the operator must delete such 
information from its records;
    (2) Where the operator collects online contact information from a 
child for the sole purpose of responding directly on a one-time basis to 
a specific request from the child, and where such information is not 
used to recontact the child and is deleted by the operator from its 
records;
    (3) Where the operator collects online contact information from a 
child to be used to respond directly more than once to a specific 
request from the child, and where such information is not used for any 
other purpose. In such cases, the operator must make reasonable efforts, 
taking into consideration available technology, to ensure that a parent 
receives notice and has the opportunity to request that the operator 
make no further use of the information, as described in Sec.  312.4(c), 
immediately after the initial response and before making any additional 
response to the child. Mechanisms to provide such notice include, but 
are not limited to, sending the notice by postal mail or sending the 
notice to the parent's e-mail address, but do not include asking a child 
to print a notice form or sending an e-mail to the child;
    (4) Where the operator collects a child's name and online contact 
information to the extent reasonably necessary to protect the safety of 
a child participant on the website or online service, and the operator 
uses reasonable efforts to provide a parent notice as described in Sec.  
312.4(c), where such information is:
    (i) Used for the sole purpose of protecting the child's safety;
    (ii) Not used to recontact the child or for any other purpose;
    (iii) Not disclosed on the website or online service; and
    (5) Where the operator collects a child's name and online contact 
information and such information is not used for any other purpose, to 
the extent reasonably necessary:
    (i) To protect the security or integrity of its website or online 
service;
    (ii) To take precautions against liability;
    (iii) To respond to judicial process; or
    (iv) To the extent permitted under other provisions of law, to 
provide information to law enforcement agencies or for an investigation 
on a matter related to public safety.

[64 FR 59911, Nov. 3, 1999, as amended at 67 FR 18821, Apr. 17, 2002]

[[Page 391]]



Sec.  312.6  Right of parent to review personal information provided by a child.

    (a) Upon request of a parent whose child has provided personal 
information to a website or online service, the operator of that website 
or online service is required to provide to that parent the following:
    (1) A description of the specific types or categories of personal 
information collected from children by the operator, such as name, 
address, telephone number, e-mail address, hobbies, and extracurricular 
activities;
    (2) The opportunity at any time to refuse to permit the operator's 
further use or future online collection of personal information from 
that child, and to direct the operator to delete the child's personal 
information; and
    (3) Notwithstanding any other provision of law, a means of reviewing 
any personal information collected from the child. The means employed by 
the operator to carry out this provision must:
    (i) Ensure that the requestor is a parent of that child, taking into 
account available technology; and
    (ii) Not be unduly burdensome to the parent.
    (b) Neither an operator nor the operator's agent shall be held 
liable under any Federal or State law for any disclosure made in good 
faith and following reasonable procedures in responding to a request for 
disclosure of personal information under this section.
    (c) Subject to the limitations set forth in Sec.  312.7, an operator 
may terminate any service provided to a child whose parent has refused, 
under paragraph (a)(2) of this section, to permit the operator's further 
use or collection of personal information from his or her child or has 
directed the operator to delete the child's personal information.



Sec.  312.7  Prohibition against conditioning a child's participation 
on collection of personal information.

    An operator is prohibited from conditioning a child's participation 
in a game, the offering of a prize, or another activity on the child's 
disclosing more personal information than is reasonably necessary to 
participate in such activity.



Sec.  312.8  Confidentiality, security, and integrity of personal 
information collected from children.

    The operator must establish and maintain reasonable procedures to 
protect the confidentiality, security, and integrity of personal 
information collected from children.



Sec.  312.9  Enforcement.

    Subject to sections 6503 and 6505 of the Children's Online Privacy 
Protection Act of 1998, a violation of a regulation prescribed under 
section 6502 (a) of this Act shall be treated as a violation of a rule 
defining an unfair or deceptive act or practice prescribed under section 
18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 
57a(a)(1)(B)).



Sec.  312.10  Safe harbors.

    (a) In general. An operator will be deemed to be in compliance with 
the requirements of this part if that operator complies with self-
regulatory guidelines, issued by representatives of the marketing or 
online industries, or by other persons, that, after notice and comment, 
are approved by the Commission.
    (b) Criteria for approval of self-regulatory guidelines. To be 
approved by the Commission, guidelines must include the following:
    (1) A requirement that operators subject to the guidelines 
(``subject operators'') implement substantially similar requirements 
that provide the same or greater protections for children as those 
contained in Sec. Sec.  312.2 through 312.9;
    (2) An effective, mandatory mechanism for the independent assessment 
of subject operators' compliance with the guidelines. This performance 
standard may be satisfied by:
    (i) Periodic reviews of subject operators' information practices 
conducted on a random basis either by the industry group promulgating 
the guidelines or by an independent entity;
    (ii) Periodic reviews of all subject operators' information 
practices, conducted either by the industry group promulgating the 
guidelines or by an independent entity;

[[Page 392]]

    (iii) Seeding of subject operators' databases, if accompanied by 
either paragraphs (b)(2)(i) or (b)(2)(ii) of this section; or
    (iv) Any other equally effective independent assessment mechanism; 
and
    (3) Effective incentives for subject operators' compliance with the 
guidelines. This performance standard may be satisfied by:
    (i) Mandatory, public reporting of disciplinary action taken against 
subject operators by the industry group promulgating the guidelines;
    (ii) Consumer redress;
    (iii) Voluntary payments to the United States Treasury in connection 
with an industry-directed program for violators of the guidelines;
    (iv) Referral to the Commission of operators who engage in a pattern 
or practice of violating the guidelines; or
    (v) Any other equally effective incentive.
    (4) The assessment mechanism required under paragraph (b)(2) of this 
section can be provided by an independent enforcement program, such as a 
seal program. In considering whether to initiate an investigation or to 
bring an enforcement action for violations of this part, and in 
considering appropriate remedies for such violations, the Commission 
will take into account whether an operator has been subject to self-
regulatory guidelines approved under this section and whether the 
operator has taken remedial action pursuant to such guidelines, 
including but not limited to actions set forth in paragraphs (b)(3)(i) 
through (iii) of this section.
    (c) Request for Commission approval of self-regulatory guidelines.
    (1) To obtain Commission approval of self-regulatory guidelines, 
industry groups or other persons must file a request for such approval. 
A request shall be accompanied by the following:
    (i) A copy of the full text of the guidelines for which approval is 
sought and any accompanying commentary;
    (ii) A comparison of each provision of Sec. Sec.  312.3 through 
312.8 with the corresponding provisions of the guidelines; and
    (iii) A statement explaining:
    (A) How the guidelines, including the applicable assessment 
mechanism, meet the requirements of this part; and
    (B) How the assessment mechanism and compliance incentives required 
under paragraphs (b)(2) and (3) of this section provide effective 
enforcement of the requirements of this part.
    (2) The Commission shall act upon a request under this section 
within 180 days of the filing of such request and shall set forth its 
conclusions in writing.
    (3) Industry groups or other persons whose guidelines have been 
approved by the Commission must submit proposed changes in those 
guidelines for review and approval by the Commission in the manner 
required for initial approval of guidelines under paragraph (c)(1). The 
statement required under paragraph (c)(1)(iii) must describe how the 
proposed changes affect existing provisions of the guidelines.
    (d) Records. Industry groups or other persons who seek safe harbor 
treatment by compliance with guidelines that have been approved under 
this part shall maintain for a period not less than three years and upon 
request make available to the Commission for inspection and copying:
    (1) Consumer complaints alleging violations of the guidelines by 
subject operators;
    (2) Records of disciplinary actions taken against subject operators; 
and
    (3) Results of the independent assessments of subject operators' 
compliance required under paragraph (b)(2) of this section.
    (e) Revocation of approval. The Commission reserves the right to 
revoke any approval granted under this section if at any time it 
determines that the approved self-regulatory guidelines and their 
implementation do not, in fact, meet the requirements of this part.



Sec.  312.11  Rulemaking review.

    No later than April 21, 2005, the Commission shall initiate a 
rulemaking review proceeding to evaluate the implementation of this 
part, including the effect of the implementation of this part on 
practices relating to the collection and disclosure of information 
relating to children, children's ability to

[[Page 393]]

obtain access to information of their choice online, and on the 
availability of websites directed to children; and report to Congress on 
the results of this review.



Sec.  312.12  Severability.

    The provisions of this part are separate and severable from one 
another. If any provision is stayed or determined to be invalid, it is 
the Commission's intention that the remaining provisions shall continue 
in effect.



PART 313_PRIVACY OF CONSUMER FINANCIAL INFORMATION--Table of Contents




Sec.
313.1 Purpose and scope.
313.2 Rule of construction.
313.3 Definitions.

                  Subpart A_Privacy and Opt Out Notices

313.4 Initial privacy notice to consumers required.
313.5 Annual privacy notice to customers required.
313.6 Information to be included in privacy notices.
313.7 Form of opt out notice to consumers; opt out methods.
313.8 Revised privacy notices.
313.9 Delivering privacy and opt out notices.

                     Subpart B_Limits on Disclosures

313.10 Limitation on disclosure of nonpublic personal information to 
          nonaffiliated third parties.
313.11 Limits on redisclosure and reuse of information.
313.12 Limits on sharing account number information for marketing 
          purposes.

                          Subpart C_Exceptions

313.13 Exception to opt out requirements for service providers and joint 
          marketing.
313.14 Exceptions to notice and opt out requirements for processing and 
          servicing transactions.
313.15 Other exceptions to notice and opt out requirements.

            Subpart D_Relation to Other Laws; Effective Date

313.16 Protection of Fair Credit Reporting Act.
313.17 Relation to State laws.
313.18 Effective date; transition rule.

Appendix A to Part 313--Sample Clauses

    Authority: 15 U.S.C. 6801 et seq.

    Source: 65 FR 33677, May 24, 2000, unless otherwise noted.



Sec.  313.1  Purpose and scope.

    (a) Purpose. This part governs the treatment of nonpublic personal 
information about consumers by the financial institutions listed in 
paragraph (b) of this section. This part:
    (1) Requires a financial institution in specified circumstances to 
provide notice to customers about its privacy policies and practices;
    (2) Describes the conditions under which a financial institution may 
disclose nonpublic personal information about consumers to nonaffiliated 
third parties; and
    (3) Provides a method for consumers to prevent a financial 
institution from disclosing that information to most nonaffiliated third 
parties by ``opting out'' of that disclosure, subject to the exceptions 
in Sec. Sec.  313.13, 313.14, and 313.15.
    (b) Scope. This part applies only to nonpublic personal information 
about individuals who obtain financial products or services primarily 
for personal, family or household purposes from the institutions listed 
below. This part does not apply to information about companies or about 
individuals who obtain financial products or services for business, 
commercial, or agricultural purposes. This part applies to those 
``financial institutions'' and ``other persons'' over which the Federal 
Trade Commission (``Commission'') has enforcement authority pursuant to 
Section 505(a)(7) of the Gramm-Leach-Bliley Act. An entity is a 
``financial institution'' if its business is engaging in a financial 
activity as described in Section 4(k) of the Bank Holding Company Act of 
1956, 12 U.S.C. 1843(k), which incorporates by reference activities 
enumerated by the Federal Reserve Board in 12 CFR 211.5(d) and 12 CFR 
225.28. The ``financial institutions'' subject to the Commission's 
enforcement authority are those that are not otherwise subject to the 
enforcement authority of another regulator under Section 505 of the 
Gramm-Leach-Bliley Act. More specifically, those entities include, but 
are not limited to, mortgage lenders, ``pay day'' lenders, finance 
companies,

[[Page 394]]

mortgage brokers, account servicers, check cashers, wire transferors, 
travel agencies operated in connection with financial services, 
collection agencies, credit counselors and other financial advisors, tax 
preparation firms, non-federally insured credit unions, and investment 
advisors that are not required to register with the Securities and 
Exchange Commission. They are referred to in this part as ``You.'' The 
``other persons'' to whom this part applies are third parties that are 
not financial institutions, but that receive nonpublic personal 
information from financial institutions with whom they are not 
affiliated. Nothing in this part modifies, limits, or supersedes the 
standards governing individually identifiable health information 
promulgated by the Secretary of Health and Human Services under the 
authority of sections 262 and 264 of the Health Insurance Portability 
and Accountability Act of 1996, 42 U.S.C. 1320d-1320d-8. Any institution 
of higher education that complies with the Federal Educational Rights 
and Privacy Act (``FERPA''), 20 U.S.C. 1232g, and its implementing 
regulations, 34 CFR part 99, and that is also a financial institution 
subject to the requirements of this part, shall be deemed to be in 
compliance with this part if it is in compliance with FERPA.



Sec.  313.2  Rule of construction.

    The examples in this part and the sample clauses in Appendix A of 
this part are not exclusive. Compliance with an example or use of a 
sample clause, to the extent applicable, constitutes compliance with 
this part. For non-federally insured credit unions, compliance with an 
example or use of a sample clause contained in 12 CFR part 716, to the 
extent applicable, constitutes compliance with this part. For intrastate 
securities broker-dealers and investment advisors not registered with 
the Securities and Exchange Commission, compliance with an example or 
use of a sample clause contained in 17 CFR part 248, to the extent 
applicable, constitutes compliance with this part.



Sec.  313.3  Definitions.

    As used in this part, unless the context requires otherwise:
    (a) Affiliate means any company that controls, is controlled by, or 
is under common control with another company.
    (b)(1) Clear and conspicuous means that a notice is reasonably 
understandable and designed to call attention to the nature and 
significance of the information in the notice.
    (2) Examples--(i) Reasonably understandable. You make your notice 
reasonably understandable if you:
    (A) Present the information in the notice in clear, concise 
sentences, paragraphs, and sections;
    (B) Use short explanatory sentences or bullet lists whenever 
possible;
    (C) Use definite, concrete, everyday words and active voice whenever 
possible;
    (D) Avoid multiple negatives;
    (E) Avoid legal and highly technical business terminology whenever 
possible; and
    (F) Avoid explanations that are imprecise and readily subject to 
different interpretations.
    (ii) Designed to call attention. You design your notice to call 
attention to the nature and significance of the information in it if 
you:
    (A) Use a plain-language heading to call attention to the notice;
    (B) Use a typeface and type size that are easy to read;
    (C) Provide wide margins and ample line spacing;
    (D) Use boldface or italics for key words; and
    (E) In a form that combines your notice with other information, use 
distinctive type size, style, and graphic devices, such as shading or 
sidebars, when you combine your notice with other information.
    (iii) Notices on web sites. If you provide a notice on a web page, 
you design your notice to call attention to the nature and significance 
of the information in it if you use text or visual cues to encourage 
scrolling down the page if necessary to view the entire notice and 
ensure that other elements on the web site (such as text, graphics, 
hyperlinks, or sound) do not distract attention from the notice, and you 
either:
    (A) Place the notice on a screen that consumers frequently access, 
such as a

[[Page 395]]

page on which transactions are conducted; or
    (B) Place a link on a screen that consumers frequently access, such 
as a page on which transactions are conducted, that connects directly to 
the notice and is labeled appropriately to convey the importance, nature 
and relevance of the notice.
    (c) Collect means to obtain information that you organize or can 
retrieve by the name of an individual or by identifying number, symbol, 
or other identifying particular assigned to the individual, irrespective 
of the source of the underlying information.
    (d) Company means any corporation, limited liability company, 
business trust, general or limited partnership, association, or similar 
organization.
    (e)(1) Consumer means an individual who obtains or has obtained a 
financial product or service from you that is to be used primarily for 
personal, family, or household purposes, or that individual's legal 
representative.
    (2) Examples--(i) An individual who applies to you for credit for 
personal, family, or household purposes is a consumer of a financial 
service, regardless of whether the credit is extended.
    (ii) An individual who provides nonpublic personal information to 
you in order to obtain a determination about whether he or she may 
qualify for a loan to be used primarily for personal, family, or 
household purposes is a consumer of a financial service, regardless of 
whether the loan is extended.
    (iii) An individual who provides nonpublic personal information to 
you in connection with obtaining or seeking to obtain financial, 
investment, or economic advisory services is a consumer, regardless of 
whether you establish a continuing advisory relationship.
    (iv) If you hold ownership or servicing rights to an individual's 
loan that is used primarily for personal, family, or household purposes, 
the individual is your consumer, even if you hold those rights in 
conjunction with one or more other institutions. (The individual is also 
a consumer with respect to the other financial institutions involved.) 
An individual who has a loan in which you have ownership or servicing 
rights is your consumer, even if you, or another institution with those 
rights, hire an agent to collect on the loan.
    (v) An individual who is a consumer of another financial institution 
is not your consumer solely because you act as agent for, or provide 
processing or other services to, that financial institution.
    (vi) An individual is not your consumer solely because he or she has 
designated you as trustee for a trust.
    (vii) An individual is not your consumer solely because he or she is 
a beneficiary of a trust for which you are a trustee.
    (viii) An individual is not your consumer solely because he or she 
is a participant or a beneficiary of an employee benefit plan that you 
sponsor or for which you act as a trustee or fiduciary.
    (f) Consumer reporting agency has the same meaning as in section 
603(f) of the Fair Credit Reporting Act (15 U.S.C. 1681a(f)).
    (g) Control of a company means:
    (1) Ownership, control, or power to vote 25 percent or more of the 
outstanding shares of any class of voting security of the company, 
directly or indirectly, or acting through one or more other persons;
    (2) Control in any manner over the election of a majority of the 
directors, trustees, or general partners (or individuals exercising 
similar functions) of the company; or
    (3) The power to exercise, directly or indirectly, a controlling 
influence over the management or policies of the company.
    (h) Customer means a consumer who has a customer relationship with 
you.
    (i)(1) Customer relationship means a continuing relationship between 
a consumer and you under which you provide one or more financial 
products or services to the consumer that are to be used primarily for 
personal, family, or household purposes.
    (2) Examples--(i) Continuing relationship. A consumer has a 
continuing relationship with you if the consumer:
    (A) Has a credit or investment account with you;
    (B) Obtains a loan from you;
    (C) Purchases an insurance product from you;

[[Page 396]]

    (D) Holds an investment product through you, such as when you act as 
a custodian for securities or for assets in an Individual Retirement 
Arrangement;
    (E) Enters into an agreement or understanding with you whereby you 
undertake to arrange or broker a home mortgage loan, or credit to 
purchase a vehicle, for the consumer;
    (F) Enters into a lease of personal property on a non-operating 
basis with you;
    (G) Obtains financial, investment, or economic advisory services 
from you for a fee;
    (H) Becomes your client for the purpose of obtaining tax preparation 
or credit counseling services from you;
    (I) Obtains career counseling while seeking employment with a 
financial institution or the finance, accounting, or audit department of 
any company (or while employed by such a financial institution or 
department of any company);
    (J) Is obligated on an account that you purchase from another 
financial institution, regardless of whether the account is in default 
when purchased, unless you do not locate the consumer or attempt to 
collect any amount from the consumer on the account;
    (K) Obtains real estate settlement services from you; or
    (L) Has a loan for which you own the servicing rights.
    (ii) No continuing relationship. A consumer does not, however, have 
a continuing relationship with you if:
    (A) The consumer obtains a financial product or service from you 
only in isolated transactions, such as using your ATM to withdraw cash 
from an account at another financial institution; purchasing a money 
order from you; cashing a check with you; or making a wire transfer 
through you;
    (B) You sell the consumer's loan and do not retain the rights to 
service that loan;
    (C) You sell the consumer airline tickets, travel insurance, or 
traveler's checks in isolated transactions;
    (D) The consumer obtains one-time personal or real property 
appraisal services from you; or
    (E) The consumer purchases checks for a personal checking account 
from you.
    (j) Federal functional regulator means:
    (1) The Board of Governors of the Federal Reserve System;
    (2) The Office of the Comptroller of the Currency;
    (3) The Board of Directors of the Federal Deposit Insurance 
Corporation;
    (4) The Director of the Office of Thrift Supervision;
    (5) The National Credit Union Administration Board; and
    (6) The Securities and Exchange Commission.
    (k)(1) Financial institution means any institution the business of 
which is engaging in financial activities as described in section 4(k) 
of the Bank Holding Company Act of 1956 (12 U.S.C. 1843(k)). An 
institution that is significantly engaged in financial activities is a 
financial institution.
    (2) Examples of financial institution. (i) A retailer that extends 
credit by issuing its own credit card directly to consumers is a 
financial institution because extending credit is a financial activity 
listed in 12 CFR 225.28(b)(1) and referenced in section 4(k)(4)(F) of 
the Bank Holding Company Act and issuing that extension of credit 
through a proprietary credit card demonstrates that a retailer is 
significantly engaged in extending credit.
    (ii) A personal property or real estate appraiser is a financial 
institution because real and personal property appraisal is a financial 
activity listed in 12 CFR 225.28(b)(2)(i) and referenced in section 
4(k)(4)(F) of the Bank Holding Company Act.
    (iii) An automobile dealership that, as a usual part of its 
business, leases automobiles on a nonoperating basis for longer than 90 
days is a financial institution with respect to its leasing business 
because leasing personal property on a nonoperating basis where the 
initial term of the lease is at least 90 days is a financial activity 
listed in 12 CFR 225.28(b)(3) and referenced in section 4(k)(4)(F) of 
the Bank Holding Company Act.
    (iv) A career counselor that specializes in providing career 
counseling services to individuals currently employed by or recently 
displaced from a

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financial organization, individuals who are seeking employment with a 
financial organization, or individuals who are currently employed by or 
seeking placement with the finance, accounting or audit departments of 
any company is a financial institution because such career counseling 
activities are financial activities listed in 12 CFR 225.28(b)(9)(iii) 
and referenced in section 4(k)(4)(F) of the Bank Holding Company Act.
    (v) A business that prints and sells checks for consumers, either as 
its sole business or as one of its product lines, is a financial 
institution because printing and selling checks is a financial activity 
that is listed in 12 CFR 225.28(b)(10)(ii) and referenced in section 
4(k)(4)(F) of the Bank Holding Company Act.
    (vi) A business that regularly wires money to and from consumers is 
a financial institution because transferring money is a financial 
activity referenced in section 4(k)(4)(A) of the Bank Holding Company 
Act and regularly providing that service demonstrates that the business 
is significantly engaged in that activity.
    (vii) A check cashing business is a financial institution because 
cashing a check is exchanging money, which is a financial activity 
listed in section 4(k)(4)(A) of the Bank Holding Company Act.
    (viii) An accountant or other tax preparation service that is in the 
business of completing income tax returns is a financial institution 
because tax preparation services is a financial activity listed in 12 
CFR 225.28(b)(6)(vi) and referenced in section 4(k)(4)(G) of the Bank 
Holding Company Act.
    (ix) A business that operates a travel agency in connection with 
financial services is a financial institution because operating a travel 
agency in connection with financial services is a financial activity 
listed in 12 CFR 211.5(d)(15) and referenced in section 4(k)(4)(G) of 
the Bank Holding Company Act.
    (x) An entity that provides real estate settlement services is a 
financial institution because providing real estate settlement services 
is a financial activity listed in 12 CFR 225.28(b)(2)(viii) and 
referenced in section 4(k)(4)(F) of the Bank Holding Company Act.
    (xi) A mortgage broker is a financial institution because brokering 
loans is a financial activity listed in 12 CFR 225.28(b)(1) and 
referenced in section 4(k)(4)(F) of the Bank Holding Company Act.
    (xii) An investment advisory company and a credit counseling service 
are each financial institutions because providing financial and 
investment advisory services are financial activities referenced in 
section 4(k)(4)(C) of the Bank Holding Company Act.
    (3) Financial institution does not include:
    (i) Any person or entity with respect to any financial activity that 
is subject to the jurisdiction of the Commodity Futures Trading 
Commission under the Commodity Exchange Act (7 U.S.C. 1 et seq.);
    (ii) The Federal Agricultural Mortgage Corporation or any entity 
chartered and operating under the Farm Credit Act of 1971 (12 U.S.C. 
2001 et seq.); or
    (iii) Institutions chartered by Congress specifically to engage in 
securitizations, secondary market sales (including sales of servicing 
rights) or similar transactions related to a transaction of a consumer, 
as long as such institutions do not sell or transfer nonpublic personal 
information to a nonaffiliated third party other than as permitted by 
Sec. Sec.  313.14 and 313.15 of this part.
    (iv) Entities that engage in financial activities but that are not 
significantly engaged in those financial activities.
    (4) Examples of entities that are not significantly engaged in 
financial activities. (i) A retailer is not a financial institution if 
its only means of extending credit are occasional ``lay away'' and 
deferred payment plans or accepting payment by means of credit cards 
issued by others.
    (ii) A retailer is not a financial institution merely because it 
accepts payment in the form of cash, checks, or credit cards that it did 
not issue.
    (iii) A merchant is not a financial institution merely because it 
allows an individual to ``run a tab.''

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    (iv) A grocery store is not a financial institution merely because 
it allows individuals to whom it sells groceries to cash a check, or 
write a check for a higher amount than the grocery purchase and obtain 
cash in return.
    (l)(1) Financial product or service means any product or service 
that a financial holding company could offer by engaging in a financial 
activity under section 4(k) of the Bank Holding Company Act of 1956 (12 
U.S.C. 1843(k)).
    (2) Financial service includes your evaluation or brokerage of 
information that you collect in connection with a request or an 
application from a consumer for a financial product or service.
    (m)(1) Nonaffiliated third party means any person except:
    (i) Your affiliate; or
    (ii) A person employed jointly by you and any company that is not 
your affiliate (but nonaffiliated third party includes the other company 
that jointly employs the person).
    (2) Nonaffiliated third party includes any company that is an 
affiliate by virtue of your or your affiliate's direct or indirect 
ownership or control of the company in conducting merchant banking or 
investment banking activities of the type described in section 
4(k)(4)(H) or insurance company investment activities of the type 
described in section 4(k)(4)(I) of the Bank Holding Company Act (12 
U.S.C. 1843(k)(4)(H) and (I)).
    (n)(1) Nonpublic personal information means:
    (i) Personally identifiable financial information; and
    (ii) Any list, description, or other grouping of consumers (and 
publicly available information pertaining to them) that is derived using 
any personally identifiable financial information that is not publicly 
available.
    (2) Nonpublic personal information does not include:
    (i) Publicly available information, except as included on a list 
described in paragraph (n)(1)(ii) of this section; or
    (ii) Any list, description, or other grouping of consumers (and 
publicly available information pertaining to them) that is derived 
without using any personally identifiable financial information that is 
not publicly available.
    (3) Examples of lists--(i) Nonpublic personal information includes 
any list of individuals' names and street addresses that is derived in 
whole or in part using personally identifiable financial information 
(that is not publicly available), such as account numbers.
    (ii) Nonpublic personal information does not include any list of 
individuals' names and addresses that contains only publicly available 
information, is not derived, in whole or in part, using personally 
identifiable financial information that is not publicly available, and 
is not disclosed in a manner that indicates that any of the individuals 
on the list is a consumer of a financial institution.
    (o)(1) Personally identifiable financial information means any 
information:
    (i) A consumer provides to you to obtain a financial product or 
service from you;
    (ii) About a consumer resulting from any transaction involving a 
financial product or service between you and a consumer; or
    (iii) You otherwise obtain about a consumer in connection with 
providing a financial product or service to that consumer.
    (2) Examples--(i) Information included. Personally identifiable 
financial information includes:
    (A) Information a consumer provides to you on an application to 
obtain a loan, credit card, or other financial product or service;
    (B) Account balance information, payment history, overdraft history, 
and credit or debit card purchase information;
    (C) The fact that an individual is or has been one of your customers 
or has obtained a financial product or service from you;
    (D) Any information about your consumer if it is disclosed in a 
manner that indicates that the individual is or has been your consumer;
    (E) Any information that a consumer provides to you or that you or 
your agent otherwise obtain in connection with collecting on, or 
servicing, a credit account;

[[Page 399]]

    (F) Any information you collect through an Internet ``cookie'' (an 
information collecting device from a web server); and
    (G) Information from a consumer report.
    (ii) Information not included. Personally identifiable financial 
information does not include:
    (A) A list of names and addresses of customers of an entity that is 
not a financial institution; and
    (B) Information that does not identify a consumer, such as aggregate 
information or blind data that does not contain personal identifiers 
such as account numbers, names, or addresses.
    (p)(1) Publicly available information means any information that you 
have a reasonable basis to believe is lawfully made available to the 
general public from:
    (i) Federal, State, or local government records;
    (ii) Widely distributed media; or
    (iii) Disclosures to the general public that are required to be made 
by Federal, State, or local law.
    (2) Reasonable basis. You have a reasonable basis to believe that 
information is lawfully made available to the general public if you have 
taken steps to determine:
    (i) That the information is of the type that is available to the 
general public; and
    (ii) Whether an individual can direct that the information not be 
made available to the general public and, if so, that your consumer has 
not done so.
    (3) Examples--(i) Government records. Publicly available information 
in government records includes information in government real estate 
records and security interest filings.
    (ii) Widely distributed media. Publicly available information from 
widely distributed media includes information from a telephone book, a 
television or radio program, a newspaper, or a web site that is 
available to the general public on an unrestricted basis. A web site is 
not restricted merely because an Internet service provider or a site 
operator requires a fee or a password, so long as access is available to 
the general public.
    (iii) Reasonable basis--(A) You have a reasonable basis to believe 
that mortgage information is lawfully made available to the general 
public if you have determined that the information is of the type 
included on the public record in the jurisdiction where the mortgage 
would be recorded.
    (B) You have a reasonable basis to believe that an individual's 
telephone number is lawfully made available to the general public if you 
have located the telephone number in the telephone book or the consumer 
has informed you that the telephone number is not unlisted.
    (q) You includes each ``financial institution'' (but excludes any 
``other person'') over which the Commission has enforcement jurisdiction 
pursuant to section 505(a)(7) of the Gramm-Leach-Bliley Act.



                  Subpart A_Privacy and Opt Out Notices



Sec.  313.4  Initial privacy notice to consumers required.

    (a) Initial notice requirement. You must provide a clear and 
conspicuous notice that accurately reflects your privacy policies and 
practices to:
    (1) Customer. An individual who becomes your customer, not later 
than when you establish a customer relationship, except as provided in 
paragraph (e) of this section; and
    (2) Consumer. A consumer, before you disclose any nonpublic personal 
information about the consumer to any nonaffiliated third party, if you 
make such a disclosure other than as authorized by Sec. Sec.  313.14 and 
313.15.
    (b) When initial notice to a consumer is not required. You are not 
required to provide an initial notice to a consumer under paragraph (a) 
of this section if:
    (1) You do not disclose any nonpublic personal information about the 
consumer to any nonaffiliated third party, other than as authorized by 
Sec. Sec.  313.14 and 313.15; and
    (2) You do not have a customer relationship with the consumer.
    (c) When you establish a customer relationship--(1) General rule. 
You establish a customer relationship when you and the consumer enter 
into a continuing relationship.

[[Page 400]]

    (2) Special rule for loans. You establish a customer relationship 
with a consumer when you originate a loan to the consumer for personal, 
family, or household purposes. If you subsequently transfer the 
servicing rights to that loan to another financial institution, the 
customer relationship transfers with the servicing rights.
    (3)(i) Examples of establishing customer relationship. You establish 
a customer relationship when the consumer:
    (A) Opens a credit card account with you;
    (B) Executes the contract to obtain credit from you or purchase 
insurance from you;
    (C) Agrees to obtain financial, economic, or investment advisory 
services from you for a fee; or
    (D) Becomes your client for the purpose of your providing credit 
counseling or tax preparation services, or to obtain career counseling 
while seeking employment with a financial institution or the finance, 
accounting, or audit department of any company (or while employed by 
such a company or financial institution);
    (E) Provides any personally identifiable financial information to 
you in an effort to obtain a mortgage loan through you;
    (F) Executes the lease for personal property with you;
    (G) Is an obligor on an account that you purchased from another 
financial institution and whom you have located and begun attempting to 
collect amounts owed on the account; or
    (H) Provides you with the information necessary for you to compile 
and provide access to all of the consumer's on-line financial accounts 
at your Web site.
    (ii) Examples of loan rule. You establish a customer relationship 
with a consumer who obtains a loan for personal, family, or household 
purposes when you:
    (A) Originate the loan to the consumer and retain the servicing 
rights; or
    (B) Purchase the servicing rights to the consumer's loan.
    (d) Existing customers. When an existing customer obtains a new 
financial product or service from you that is to be used primarily for 
personal, family, or household purposes, you satisfy the initial notice 
requirements of paragraph (a) of this section as follows:
    (1) You may provide a revised privacy notice, under Sec.  313.8, 
that covers the customer's new financial product or service; or
    (2) If the initial, revised, or annual notice that you most recently 
provided to that customer was accurate with respect to the new financial 
product or service, you do not need to provide a new privacy notice 
under paragraph (a) of this section.
    (e) Exceptions to allow subsequent delivery of notice. (1) You may 
provide the initial notice required by paragraph (a)(1) of this section 
within a reasonable time after you establish a customer relationship if:
    (i) Establishing the customer relationship is not at the customer's 
election; or
    (ii) Providing notice not later than when you establish a customer 
relationship would substantially delay the customer's transaction and 
the customer agrees to receive the notice at a later time.
    (2) Examples of exceptions--(i) Not at customer's election. 
Establishing a customer relationship is not at the customer's election 
if you acquire a customer's loan, or the servicing rights, from another 
financial institution and the customer does not have a choice about your 
acquisition.
    (ii) Substantial delay of customer's transaction. Providing notice 
not later than when you establish a customer relationship would 
substantially delay the customer's transaction when:
    (A) You and the individual agree over the telephone to enter into a 
customer relationship involving prompt delivery of the financial product 
or service; or
    (B) You establish a customer relationship with an individual under a 
program authorized by Title IV of the Higher Education Act of 1965 (20 
U.S.C. 1070 et seq.) or similar student loan programs where loan 
proceeds are disbursed promptly without prior communication between you 
and the customer.
    (iii) No substantial delay of customer's transaction. Providing 
notice not later than when you establish a customer relationship would 
not substantially

[[Page 401]]

delay the customer's transaction when the relationship is initiated in 
person at your office or through other means by which the customer may 
view the notice, such as through a web site.
    (f) Delivery. When you are required to deliver an initial privacy 
notice by this section, you must deliver it according to Sec.  313.9. If 
you use a short-form initial notice for non-customers according to Sec.  
313.6(d), you may deliver your privacy notice according to Sec.  
313.6(d)(3).



Sec.  313.5  Annual privacy notice to customers required.

    (a)(1) General rule. You must provide a clear and conspicuous notice 
to customers that accurately reflects your privacy policies and 
practices not less than annually during the continuation of the customer 
relationship. Annually means at least once in any period of 12 
consecutive months during which that relationship exists. You may define 
the 12-consecutive-month period, but you must apply it to the customer 
on a consistent basis.
    (2) Example. You provide a notice annually if you define the 12-
consecutive-month period as a calendar year and provide the annual 
notice to the customer once in each calendar year following the calendar 
year in which you provided the initial notice. For example, if a 
customer opens an account on any day of year 1, you must provide an 
annual notice to that customer by December 31 of year 2.
    (b)(1) Termination of customer relationship. You are not required to 
provide an annual notice to a former customer.
    (2) Examples. Your customer becomes a former customer when:
    (i) In the case of a closed-end loan, the customer pays the loan in 
full, you charge off the loan, or you sell the loan without retaining 
servicing rights;
    (ii) In the case of a credit card relationship or other open-end 
credit relationship, you sell the receivables without retaining 
servicing rights;
    (iii) In the case of credit counseling services, the customer has 
failed to make required payments under a debt management plan, has been 
notified that the plan is terminated, and you no longer provide any 
statements or notices to the customer concerning that relationship;
    (iv) In the case of mortgage or vehicle loan brokering services, 
your customer has obtained a loan through you (and you no longer provide 
any statements or notices to the customer concerning that relationship), 
or has ceased using your services for such purposes;
    (v) In the case of tax preparation services, you have provided and 
received payment for the service and no longer provide any statements or 
notices to the customer concerning that relationship;
    (vi) In the case of providing real estate settlement services, at 
the time the customer completes execution of all documents related to 
the real estate closing, you have received payment, or you have 
completed all of your responsibilities with respect to the settlement, 
including filing documents on the public record, whichever is later.
    (vii) In cases where there is no definitive time at which the 
customer relationship has terminated, you have not communicated with the 
customer about the relationship for a period of 12 consecutive months, 
other than to provide annual privacy notices or promotional material.
    (c) Special rule for loans. If you do not have a customer 
relationship with a consumer under the special rule for loans in Sec.  
313.4(c)(2), then you need not provide an annual notice to that consumer 
under this section.
    (d) Delivery. When you are required to deliver an annual privacy 
notice by this section, you must deliver it according to Sec.  313.9.



Sec.  313.6  Information to be included in privacy notices.

    (a) General rule. The initial, annual, and revised privacy notices 
that you provide under Sec. Sec.  313.4, 313.5, and 313.8 must include 
each of the following items of information that applies to you or to the 
consumers to whom you send your privacy notice, in addition to any other 
information you wish to provide:
    (1) The categories of nonpublic personal information that you 
collect;
    (2) The categories of nonpublic personal information that you 
disclose;
    (3) The categories of affiliates and nonaffiliated third parties to 
whom

[[Page 402]]

you disclose nonpublic personal information, other than those parties to 
whom you disclose information under Sec. Sec.  313.14 and 313.15;
    (4) The categories of nonpublic personal information about your 
former customers that you disclose and the categories of affiliates and 
nonaffiliated third parties to whom you disclose nonpublic personal 
information about your former customers, other than those parties to 
whom you disclose information under Sec. Sec.  313.14 and 313.15;
    (5) If you disclose nonpublic personal information to a 
nonaffiliated third party under Sec.  313.13 (and no exception under 
Sec. Sec.  313.14 or 313.15 applies to that disclosure), a separate 
statement of the categories of information you disclose and the 
categories of third parties with whom you have contracted;
    (6) An explanation of the consumer's right under Sec.  313.10(a) to 
opt out of the disclosure of nonpublic personal information to 
nonaffiliated third parties, including the method(s) by which the 
consumer may exercise that right at that time;
    (7) Any disclosures that you make under section 603(d)(2)(A)(iii) of 
the Fair Credit Reporting Act (15 U.S.C. 1681a(d)(2)(A)(iii)) (that is, 
notices regarding the ability to opt out of disclosures of information 
among affiliates);
    (8) Your policies and practices with respect to protecting the 
confidentiality and security of nonpublic personal information; and
    (9) Any disclosure that you make under paragraph (b) of this 
section.
    (b) Description of nonaffiliated third parties subject to 
exceptions. If you disclose nonpublic personal information to third 
parties as authorized under Sec. Sec.  313.14 and 313.15, you are not 
required to list those exceptions in the initial or annual privacy 
notices required by Sec. Sec.  313.4 and 313.5. When describing the 
categories with respect to those parties, you are required to state only 
that you make disclosures to other nonaffiliated third parties as 
permitted by law.
    (c) Examples--(1) Categories of nonpublic personal information that 
you collect. You satisfy the requirement to categorize the nonpublic 
personal information that you collect if you list the following 
categories, as applicable:
    (i) Information from the consumer;
    (ii) Information about the consumer's transactions with you or your 
affiliates;
    (iii) Information about the consumer's transactions with 
nonaffiliated third parties; and
    (iv) Information from a consumer reporting agency.
    (2) Categories of nonpublic personal information you disclose--(i) 
You satisfy the requirement to categorize the nonpublic personal 
information that you disclose if you list the categories described in 
paragraph (e)(1) of this section, as applicable, and a few examples to 
illustrate the types of information in each category.
    (ii) If you reserve the right to disclose all of the nonpublic 
personal information about consumers that you collect, you may simply 
state that fact without describing the categories or examples of the 
nonpublic personal information you disclose.
    (3) Categories of affiliates and nonaffiliated third parties to whom 
you disclose. You satisfy the requirement to categorize the affiliates 
and nonaffiliated third parties to whom you disclose nonpublic personal 
information if you list them using the following categories, as 
applicable, and a few applicable examples to illustrate the significant 
types of third parties covered in each category.
    (i) Financial service providers, followed by illustrative examples 
such as mortgage bankers, securities broker-dealers, and insurance 
agents.
    (ii) Non-financial companies, followed by illustrative examples such 
as retailers, magazine publishers, airlines, and direct marketers; and
    (iii) Others, followed by examples such as nonprofit organizations.
    (4) Disclosures under exception for service providers and joint 
marketers. If you disclose nonpublic personal information under the 
exception in Sec.  313.13 to a nonaffiliated third party to market 
products or services that you offer alone or jointly with another 
financial institution, you satisfy the disclosure requirement of 
paragraph (a)(5) of this section if you:

[[Page 403]]

    (i) List the categories of nonpublic personal information you 
disclose, using the same categories and examples you used to meet the 
requirements of paragraph (a)(2) of this section, as applicable; and
    (ii) State whether the third party is:
    (A) A service provider that performs marketing services on your 
behalf or on behalf of you and another financial institution; or
    (B) A financial institution with whom you have a joint marketing 
agreement.
    (5) Simplified notices. If you do not disclose, and do not wish to 
reserve the right to disclose, nonpublic personal information about 
customers or former customers to affiliates or nonaffiliated third 
parties except as authorized under Sec. Sec.  313.14 and 313.15, you may 
simply state that fact, in addition to the information you must provide 
under paragraphs (a)(1), (a)(8), (a)(9), and (b) of this section.
    (6) Confidentiality and security. You describe your policies and 
practices with respect to protecting the confidentiality and security of 
nonpublic personal information if you do both of the following:
    (i) Describe in general terms who is authorized to have access to 
the information; and
    (ii) State whether you have security practices and procedures in 
place to ensure the confidentiality of the information in accordance 
with your policy. You are not required to describe technical information 
about the safeguards you use.
    (d) Short-form initial notice with opt out notice for non-
customers--(1) You may satisfy the initial notice requirements in 
Sec. Sec.  313.4(a)(2), 313.7(b), and 313.7(c) for a consumer who is not 
a customer by providing a short-form initial notice at the same time as 
you deliver an opt out notice as required in Sec.  313.7.
    (2) A short-form initial notice must:
    (i) Be clear and conspicuous;
    (ii) State that your privacy notice is available upon request; and
    (iii) Explain a reasonable means by which the consumer may obtain 
that notice.
    (3) You must deliver your short-form initial notice according to 
Sec.  313.9. You are not required to deliver your privacy notice with 
your short-form initial notice. You instead may simply provide the 
consumer a reasonable means to obtain your privacy notice. If a consumer 
who receives your short-form notice requests your privacy notice, you 
must deliver your privacy notice according to Sec.  313.9.
    (4) Examples of obtaining privacy notice. You provide a reasonable 
means by which a consumer may obtain a copy of your privacy notice if 
you:
    (i) Provide a toll-free telephone number that the consumer may call 
to request the notice; or
    (ii) For a consumer who conducts business in person at your office, 
maintain copies of the notice on hand that you provide to the consumer 
immediately upon request.
    (e) Future disclosures. Your notice may include:
    (1) Categories of nonpublic personal information that you reserve 
the right to disclose in the future, but do not currently disclose; and
    (2) Categories of affiliates or nonaffiliated third parties to whom 
you reserve the right in the future to disclose, but to whom you do not 
currently disclose, nonpublic personal information.
    (f) Sample clauses. Sample clauses illustrating some of the notice 
content required by this section are included in Appendix A of this 
part.



Sec.  313.7  Form of opt out notice to consumers; opt out methods.

    (a)(1) Form of opt out notice. If you are required to provide an opt 
out notice under Sec.  313.10(a), you must provide a clear and 
conspicuous notice to each of your consumers that accurately explains 
the right to opt out under that section. The notice must state:
    (i) That you disclose or reserve the right to disclose nonpublic 
personal information about your consumer to a nonaffiliated third party;
    (ii) That the consumer has the right to opt out of that disclosure; 
and
    (iii) A reasonable means by which the consumer may exercise the opt 
out right.
    (2) Examples--(i) Adequate opt out notice. You provide adequate 
notice that

[[Page 404]]

the consumer can opt out of the disclosure of nonpublic personal 
information to a nonaffiliated third party if you:
    (A) Identify all of the categories of nonpublic personal information 
that you disclose or reserve the right to disclose, and all of the 
categories of nonaffiliated third parties to which you disclose the 
information, as described in Sec.  313.6(a) (2) and (3) and state that 
the consumer can opt out of the disclosure of that information; and
    (B) Identify the financial products or services that the consumer 
obtains from you, either singly or jointly, to which the opt out 
direction would apply.
    (ii) Reasonable opt out means. You provide a reasonable means to 
exercise an opt out right if you:
    (A) Designate check-off boxes in a prominent position on the 
relevant forms with the opt out notice;
    (B) Include a reply form that includes the address to which the form 
should be mailed; or
    (C) Provide an electronic means to opt out, such as a form that can 
be sent via electronic mail or a process at your web site, if the 
consumer agrees to the electronic delivery of information; or
    (D) Provide a toll-free telephone number that consumers may call to 
opt out.
    (iii) Unreasonable opt out means. You do not provide a reasonable 
means of opting out if:
    (A) The only means of opting out is for the consumer to write his or 
her own letter to exercise that opt out right; or
    (B) The only means of opting out as described in any notice 
subsequent to the initial notice is to use a check-off box that you 
provided with the initial notice but did not include with the subsequent 
notice.
    (iv) Specific opt out means. You may require each consumer to opt 
out through a specific means, as long as that means is reasonable for 
that consumer.
    (b) Same form as initial notice permitted. You may provide the opt 
out notice together with or on the same written or electronic form as 
the initial notice you provide in accordance with Sec.  313.4.
    (c) Initial notice required when opt out notice delivered subsequent 
to initial notice. If you provide the opt out notice later than required 
for the initial notice in accordance with Sec.  313.4, you must also 
include a copy of the initial notice with the opt out notice in writing 
or, if the consumer agrees, electronically.
    (d) Joint relationships--(1) If two or more consumers jointly obtain 
a financial product or service from you, you may provide a single opt 
out notice, unless one or more of those consumers requests a separate 
opt out notice. Your opt out notice must explain how you will treat an 
opt out direction by a joint consumer (as explained in paragraph 
(d)(5)(ii)of this section).
    (2) Any of the joint consumers may exercise the right to opt out. 
You may either:
    (i) Treat an opt out direction by a joint consumer as applying to 
all of the associated joint consumers; or
    (ii) Permit each joint consumer to opt out separately.
    (3) If you permit each joint consumer to opt out separately, you 
must permit one of the joint consumers to opt out on behalf of all of 
the joint consumers.
    (4) You may not require all joint consumers to opt out before you 
implement any opt out direction.
    (5) Example. If John and Mary have a joint credit card account with 
you and arrange for you to send statements to John's address, you may do 
any of the following, but you must explain in your opt out notice which 
opt out policy you will follow:
    (i) Send a single opt out notice to John's address, but you must 
accept an opt out direction from either John or Mary.
    (ii) Treat an opt out direction by either John or Mary as applying 
to the entire account. If you do so, and John opts out, you may not 
require Mary to opt out as well before implementing John's opt out 
direction.
    (iii) Permit John and Mary to make different opt out directions. If 
you do so,
    (A) You must permit John and Mary to opt out for each other;
    (B) If both opt out, you must permit both to notify you in a single 
response

[[Page 405]]

(such as on a form or through a telephone call); and
    (C) If John opts out and Mary does not, you may only disclose 
nonpublic personal information about Mary, but not about John and not 
about John and Mary jointly.
    (e) Time to comply with opt out. You must comply with a consumer's 
opt out direction as soon as reasonably practicable after you receive 
it.
    (f) Continuing right to opt out. A consumer may exercise the right 
to opt out at any time.
    (g) Duration of consumer's opt out direction--(1) A consumer's 
direction to opt out under this section is effective until the consumer 
revokes it in writing or, if the consumer agrees, electronically.
    (2) When a customer relationship terminates, the customer's opt out 
direction continues to apply to the nonpublic personal information that 
you collected during or related to that relationship. If the individual 
subsequently establishes a new customer relationship with you, the opt 
out direction that applied to the former relationship does not apply to 
the new relationship.
    (h) Delivery. When you are required to deliver an opt out notice by 
this section, you must deliver it according to Sec.  313.9.



Sec.  313.8  Revised privacy notices.

    (a) General rule. Except as otherwise authorized in this part, you 
must not, directly or through any affiliate, disclose any nonpublic 
personal information about a consumer to a nonaffiliated third party 
other than as described in the initial notice that you provided to that 
consumer under Sec.  313.4, unless:
    (1) You have provided to the consumer a clear and conspicuous 
revised notice that accurately describes your policies and practices;
    (2) You have provided to the consumer a new opt out notice;
    (3) You have given the consumer a reasonable opportunity, before you 
disclose the information to the nonaffiliated third party, to opt out of 
the disclosure; and
    (4) the consumer does not opt out.
    (b) Examples--(1) Except as otherwise permitted by Sec. Sec.  
313.13, 313.14, and 313.15, you must provide a revised notice before 
you:
    (i) Disclose a new category of nonpublic personal information to any 
nonaffiliated third party;
    (ii) Disclose nonpublic personal information to a new category of 
nonaffiliated third party; or
    (iii) Disclose nonpublic personal information about a former 
customer to a nonaffiliated third party if that former customer has not 
had the opportunity to exercise an opt out right regarding that 
disclosure.
    (2) A revised notice is not required if you disclose nonpublic 
personal information to a new nonaffiliated third party that you 
adequately described in your prior notice.
    (c) Delivery. When you are required to deliver a revised privacy 
notice by this section, you must deliver it according to Sec.  313.9.



Sec.  313.9  Delivering privacy and opt out notices.

    (a) How to provide notices. You must provide any privacy notices and 
opt out notices, including short-form initial notices, that this part 
requires so that each consumer can reasonably be expected to receive 
actual notice in writing or, if the consumer agrees, electronically.
    (b)(1) Examples of reasonable expectation of actual notice. You may 
reasonably expect that a consumer will receive actual notice if you:
    (i) Hand-deliver a printed copy of the notice to the consumer;
    (ii) Mail a printed copy of the notice to the last known address of 
the consumer;
    (iii) For the consumer who conducts transactions electronically, 
clearly and conspicuously post the notice on the electronic site and 
require the consumer to acknowledge receipt of the notice as a necessary 
step to obtaining a particular financial product or service;
    (iv) For an isolated transaction with the consumer, such as an ATM 
transaction, post the notice on the ATM screen and require the consumer 
to acknowledge receipt of the notice as a necessary step to obtaining 
the particular financial product or service.

[[Page 406]]

    (2) Examples of unreasonable expectation of actual notice. You may 
not, however, reasonably expect that a consumer will receive actual 
notice of your privacy policies and practices if you:
    (i) Only post a sign in your branch or office or generally publish 
advertisements of your privacy policies and practices;
    (ii) Send the notice via electronic mail to a consumer who does not 
obtain a financial product or service from you electronically.
    (c) Annual notices only. You may reasonably expect that a customer 
will receive actual notice of your annual privacy notice if:
    (1) The customer uses your web site to access financial products and 
services electronically and agrees to receive notices at the web site 
and you post your current privacy notice continuously in a clear and 
conspicuous manner on the web site; or
    (2) The customer has requested that you refrain from sending any 
information regarding the customer relationship, and your current 
privacy notice remains available to the customer upon request.
    (d) Oral description of notice insufficient. You may not provide any 
notice required by this part solely by orally explaining the notice, 
either in person or over the telephone.
    (e) Retention or accessibility of notices for customers--(1) For 
customers only, you must provide the initial notice required by Sec.  
313.4(a)(1), the annual notice required by Sec.  313.5(a), and the 
revised notice required by Sec.  313.8 so that the customer can retain 
them or obtain them later in writing or, if the customer agrees, 
electronically.
    (2) Examples of retention or accessibility. You provide a privacy 
notice to the customer so that the customer can retain it or obtain it 
later if you:
    (i) Hand-deliver a printed copy of the notice to the customer;
    (ii) Mail a printed copy of the notice to the last known address of 
the customer; or
    (iii) Make your current privacy notice available on a web site (or a 
link to another web site) for the customer who obtains a financial 
product or service electronically and agrees to receive the notice at 
the web site.
    (f) Joint notice with other financial institutions. You may provide 
a joint notice from you and one or more of your affiliates or other 
financial institutions, as identified in the notice, as long as the 
notice is accurate with respect to you and the other institutions.
    (g) Joint relationships. If two or more consumers jointly obtain a 
financial product or service from you, you may satisfy the initial, 
annual, and revised notice requirements of Sec. Sec.  313.4(a), 
313.5(a), and 313.8(a) by providing one notice to those consumers 
jointly, unless one or more of those consumers requests separate 
notices.



                     Subpart B_Limits on Disclosures



Sec.  313.10  Limits on disclosure of non-public personal information 
to nonaffiliated third parties.

    (a)(1) Conditions for disclosure. Except as otherwise authorized in 
this part, you may not, directly or through any affiliate, disclose any 
nonpublic personal information about a consumer to a nonaffiliated third 
party unless:
    (i) You have provided to the consumer an initial notice as required 
under Sec.  313.4;
    (ii) You have provided to the consumer an opt out notice as required 
in Sec.  313.7;
    (iii) You have given the consumer a reasonable opportunity, before 
you disclose the information to the nonaffiliated third party, to opt 
out of the disclosure; and
    (iv) The consumer does not opt out.
    (2) Opt out definition. Opt out means a direction by the consumer 
that you not disclose nonpublic personal information about that consumer 
to a nonaffiliated third party, other than as permitted by Sec. Sec.  
313.13, 313.14, and 313.15.
    (3) Examples of reasonable opportunity to opt out. You provide a 
consumer with a reasonable opportunity to opt out if:
    (i) By mail. You mail the notices required in paragraph (a)(1) of 
this section to the consumer and allow the consumer to opt out by 
mailing a form, calling a toll-free telephone number, or any other 
reasonable means within 30 days from the date you mailed the notices.

[[Page 407]]

    (ii) By electronic means. A customer opens an on-line account with 
you and agrees to receive the notices required in paragraph (a)(1) of 
this section electronically, and you allow the customer to opt out by 
any reasonable means within 30 days after the date that the customer 
acknowledges receipt of the notices in conjunction with opening the 
account.
    (iii) Isolated transaction with consumer. For an isolated 
transaction, such as the purchase of a money order by a consumer, you 
provide the consumer with a reasonable opportunity to opt out if you 
provide the notices required in paragraph (a)(1) of this section at the 
time of the transaction and request that the consumer decide, as a 
necessary part of the transaction, whether to opt out before completing 
the transaction.
    (b) Application of opt out to all consumers and all nonpublic 
personal information--(1) You must comply with this section, regardless 
of whether you and the consumer have established a customer relationship
    (2) Unless you comply with this section, you may not, directly or 
through any affiliate, disclose any nonpublic personal information about 
a consumer that you have collected, regardless of whether you collected 
it before or after receiving the direction to opt out from the consumer.
    (c) Partial opt out. You may allow a consumer to select certain 
nonpublic personal information or certain nonaffiliated third parties 
with respect to which the consumer wishes to opt out.



Sec.  313.11  Limits on redisclosure and reuse of information.

    (a)(1) Information you receive under an exception. If you receive 
nonpublic personal information from a nonaffiliated financial 
institution under an exception in Sec.  313.14 or 313.15 of this part, 
your disclosure and use of that information is limited as follows:
    (i) You may disclose the information to the affiliates of the 
financial institution from which you received the information;
    (ii) You may disclose the information to your affiliates, but your 
affiliates may, in turn, disclose and use the information only to the 
extent that you may disclose and use the information; and
    (iii) You may disclose and use the information pursuant to an 
exception in Sec.  313.14 or 313.15 in the ordinary course of business 
to carry out the activity covered by the exception under which you 
received the information.
    (2) Example. If you receive a customer list from a nonaffiliated 
financial institution in order to provide account processing services 
under the exception in Sec.  313.14(a), you may disclose that 
information under any exception in Sec.  313.14 or 313.15 in the 
ordinary course of business in order to provide those services. You 
could also disclose that information in response to a properly 
authorized subpoena. You could not disclose that information to a third 
party for marketing purposes or use that information for your own 
marketing purposes.
    (b)(1) Information you receive outside of an exception. If you 
receive nonpublic personal information from a nonaffiliated financial 
institution other than under an exception in Sec.  313.14 or 313.15 of 
this part, you may disclose the information only:
    (i) To the affiliates of the financial institution from which you 
received the information;
    (ii) To your affiliates, but your affiliates may, in turn, disclose 
the information only to the extent that you can disclose the 
information; and
    (iii) To any other person, if the disclosure would be lawful if made 
directly to that person by the financial institution from which you 
received the information.
    (2) Example. If you obtain a customer list from a nonaffiliated 
financial institution outside of the exceptions in Sec.  313.14 and 
313.15:
    (i) You may use that list for your own purposes; and
    (ii) You may disclose that list to another nonaffiliated third party 
only if the financial institution from which you purchased the list 
could have lawfully disclosed the list to that third party. That is, you 
may disclose the list in accordance with the privacy policy of the 
financial institution from which you received the list, as limited

[[Page 408]]

by the opt out direction of each consumer whose nonpublic personal 
information you intend to disclose, and you may disclose the list in 
accordance with an exception in Sec.  313.14 or 313.15, such as to your 
attorneys or accountants.
    (c) Information you disclose under an exception. If you disclose 
nonpublic personal information to a nonaffiliated third party under an 
exception in Sec.  313.14 or 313.15 of this part, the third party may 
disclose and use that information only as follows:
    (1) The third party may disclose the information to your affiliates;
    (2) The third party may disclose the information to its affiliates, 
but its affiliates may, in turn, disclose and use the information only 
to the extent that the third party may disclose and use the information; 
and
    (3) The third party may disclose and use the information pursuant to 
an exception in Sec.  313.14 or 313.15 in the ordinary course of 
business to carry out the activity covered by the exception under which 
it received the information.
    (d) Information you disclose outside of an exception. If you 
disclose nonpublic personal information to a nonaffiliated third party 
other than under an exception in Sec.  313.14 or 313.15 of this part, 
the third party may disclose the information only:
    (1) To your affiliates;
    (2) To its affiliates, but its affiliates, in turn, may disclose the 
information only to the extent the third party can disclose the 
information; and
    (3) To any other person, if the disclosure would be lawful if you 
made it directly to that person.



Sec.  313.12  Limits on sharing account number information for marketing purposes.

    (a) General prohibition on disclosure of account numbers. You must 
not, directly or through an affiliate, disclose, other than to a 
consumer reporting agency, an account number or similar form of access 
number or access code for a consumer's credit card account, deposit 
account, or transaction account to any nonaffiliated third party for use 
in telemarketing, direct mail marketing, or other marketing through 
electronic mail to the consumer.
    (b) Exceptions. Paragraph (a) of this section does not apply if you 
disclose an account number or similar form of access number or access 
code:
    (1) To your agent or service provider solely in order to perform 
marketing for your own products or services, as long as the agent or 
service provider is not authorized to directly initiate charges to the 
account; or
    (2) To a participant in a private label credit card program or an 
affinity or similar program where the participants in the program are 
identified to the customer when the customer enters into the program.
    (c) Examples--(1) Account number. An account number, or similar form 
of access number or access code, does not include a number or code in an 
encrypted form, as long as you do not provide the recipient with a means 
to decode the number or code.
    (2) Transaction account. A transaction account is an account other 
than a deposit account or a credit card account. A transaction account 
does not include an account to which third parties cannot initiate 
charges.



                          Subpart C_Exceptions



Sec.  313.13  Exception to opt out requirements for service providers and joint marketing.

    (a) General rule. (1) The opt out requirements in Sec. Sec.  313.7 
and 313.10 do not apply when you provide nonpublic personal information 
to a nonaffiliated third party to perform services for you or functions 
on your behalf, if you:
    (i) Provide the initial notice in accordance with Sec.  313.4; and
    (ii) Enter into a contractual agreement with the third party that 
prohibits the third party from disclosing or using the information other 
than to carry out the purposes for which you disclosed the information, 
including use under an exception in Sec.  313.14 or 313.15 in the 
ordinary course of business to carry out those purposes.
    (2) Example. If you disclose nonpublic personal information under 
this section to a financial institution with which you perform joint 
marketing, your contractual agreement with that

[[Page 409]]

institution meets the requirements of paragraph (a)(1)(ii) of this 
section if it prohibits the institution from disclosing or using the 
nonpublic personal information except as necessary to carry out the 
joint marketing or under an exception in Sec.  313.14 or 313.15 in the 
ordinary course of business to carry out that joint marketing.
    (b) Service may include joint marketing. The services a 
nonaffiliated third party performs for you under paragraph (a) of this 
section may include marketing of your own products or services or 
marketing of financial products or services offered pursuant to joint 
agreements between you and one or more financial institutions.
    (c) Definition of joint agreement. For purposes of this section, 
joint agreement means a written contract pursuant to which you and one 
or more financial institutions jointly offer, endorse, or sponsor a 
financial product or service.



Sec.  313.14  Exceptions to notice and opt out requirements for processing 
and servicing transactions.

    (a) Exceptions for processing transactions at consumer's request. 
The requirements for initial notice in Sec.  313.4(a)(2), for the opt 
out in Sec. Sec.  313.7 and 313.10, and for service providers and joint 
marketing in Sec.  313.13 do not apply if you disclose nonpublic 
personal information as necessary to effect, administer, or enforce a 
transaction that a consumer requests or authorizes, or in connection 
with:
    (1) Servicing or processing a financial product or service that a 
consumer requests or authorizes;
    (2) Maintaining or servicing the consumer's account with you, or 
with another entity as part of a private label credit card program or 
other extension of credit on behalf of such entity; or
    (3) A proposed or actual securitization, secondary market sale 
(including sales of servicing rights), or similar transaction related to 
a transaction of the consumer.
    (b) Necessary to effect, administer, or enforce a transaction means 
that the disclosure is:
    (1) Required, or is one of the lawful or appropriate methods, to 
enforce your rights or the rights of other persons engaged in carrying 
out the financial transaction or providing the product or service; or
    (2) Required, or is a usual, appropriate or acceptable method:
    (i) To carry out the transaction or the product or service business 
of which the transaction is a part, and record, service, or maintain the 
consumer's account in the ordinary course of providing the financial 
service or financial product;
    (ii) To administer or service benefits or claims relating to the 
transaction or the product or service business of which it is a part;
    (iii) To provide a confirmation, statement, or other record of the 
transaction, or information on the status or value of the financial 
service or financial product to the consumer or the consumer's agent or 
broker;
    (iv) To accrue or recognize incentives or bonuses associated with 
the transaction that are provided by you or any other party;
    (v) To underwrite insurance at the consumer's request or for 
reinsurance purposes, or for any of the following purposes as they 
relate to a consumer's insurance: account administration, reporting, 
investigating, or preventing fraud or material misrepresentation, 
processing premium payments, processing insurance claims, administering 
insurance benefits (including utilization review activities), 
participating in research projects, or as otherwise required or 
specifically permitted by Federal or State law;
    (vi) In connection with:
    (A) The authorization, settlement, billing, processing, clearing, 
transferring, reconciling or collection of amounts charged, debited, or 
otherwise paid using a debit, credit, or other payment card, check, or 
account number, or by other payment means;
    (B) The transfer of receivables, accounts, or interests therein; or
    (C) The audit of debit, credit, or other payment information.



Sec.  313.15  Other exceptions to notice and opt out requirements.

    (a) Exceptions to opt out requirements. The requirements for initial 
notice in Sec.  313.4(a)(2), for the opt out in Sec. Sec.  313.7 and 
313.10, and for service providers and

[[Page 410]]

joint marketing in Sec.  313.13 do not apply when you disclose nonpublic 
personal information:
    (1) With the consent or at the direction of the consumer, provided 
that the consumer has not revoked the consent or direction;
    (2)(i) To protect the confidentiality or security of your records 
pertaining to the consumer, service, product, or transaction;
    (ii) To protect against or prevent actual or potential fraud, 
unauthorized transactions, claims, or other liability;
    (iii) For required institutional risk control or for resolving 
consumer disputes or inquiries;
    (iv) To persons holding a legal or beneficial interest relating to 
the consumer; or
    (v) To persons acting in a fiduciary or representative capacity on 
behalf of the consumer;
    (3) To provide information to insurance rate advisory organizations, 
guaranty funds or agencies, agencies that are rating you, persons that 
are assessing your compliance with industry standards, and your 
attorneys, accountants, and auditors;
    (4) To the extent specifically permitted or required under other 
provisions of law and in accordance with the Right to Financial Privacy 
Act of 1978 (12 U.S.C. 3401 et seq.), to law enforcement agencies 
(including a federal functional regulator, the Secretary of the 
Treasury, with respect to 31 U.S.C. Chapter 53, Subchapter II (Records 
and Reports on Monetary Instruments and Transactions) and 12 U.S.C. 
Chapter 21 (Financial Recordkeeping), a State insurance authority, with 
respect to any person domiciled in that insurance authority's State that 
is engaged in providing insurance, and the Federal Trade Commission), 
self-regulatory organizations, or for an investigation on a matter 
related to public safety;
    (5)(i) To a consumer reporting agency in accordance with the Fair 
Credit Reporting Act (15 U.S.C. 1681 et seq.), or
    (ii) From a consumer report reported by a consumer reporting agency;
    (6) In connection with a proposed or actual sale, merger, transfer, 
or exchange of all or a portion of a business or operating unit if the 
disclosure of nonpublic personal information concerns solely consumers 
of such business or unit; or
    (7)(i) To comply with Federal, State, or local laws, rules and other 
applicable legal requirements;
    (ii) To comply with a properly authorized civil, criminal, or 
regulatory investigation, or subpoena or summons by Federal, State, or 
local authorities; or
    (iii) To respond to judicial process or government regulatory 
authorities having jurisdiction over you for examination, compliance, or 
other purposes as authorized by law.
    (b) Examples of consent and revocation of consent. (1) A consumer 
may specifically consent to your disclosure to a nonaffiliated insurance 
company of the fact that the consumer has applied to you for a mortgage 
so that the insurance company can offer homeowner's insurance to the 
consumer.
    (2) A consumer may revoke consent by subsequently exercising the 
right to opt out of future disclosures of nonpublic personal information 
as permitted under Sec.  313.7(f).



            Subpart D_Relation to Other Laws; Effective Date



Sec.  313.16  Protection of Fair Credit Reporting Act.

    Nothing in this part shall be construed to modify, limit, or 
supersede the operation of the Fair Credit Reporting Act (15 U.S.C. 1681 
et seq.), and no inference shall be drawn on the basis of the provisions 
of this part regarding whether information is transaction or experience 
information under section 603 of that Act.



Sec.  313.17  Relation to State laws.

    (a) In general. This part shall not be construed as superseding, 
altering, or affecting any statute, regulation, order, or interpretation 
in effect in any State, except to the extent that such State statute, 
regulation, order, or interpretation is inconsistent with the provisions 
of this part, and then only to the extent of the inconsistency.
    (b) Greater protection under State law. For purposes of this 
section, a State statute, regulation, order, or interpretation is not 
inconsistent with the provisions of this part if the protection

[[Page 411]]

such statute, regulation, order, or interpretation affords any consumer 
is greater than the protection provided under this part, as determined 
by the Commission on its own motion or upon the petition of any 
interested party, after consultation with the applicable federal 
functional regulator or other authority.



Sec.  313.18  Effective date; transition rule.

    (a) Effective date--(1) General rule. This part is effective 
November 13, 2000. In order to provide sufficient time for you to 
establish policies and systems to comply with the requirements of this 
part, the Commission has extended the time for compliance with this part 
until July 1, 2001.
    (2) Exception. This part is not effective as to any institution that 
is significantly engaged in activities that the Federal Reserve Board 
determines, after November 12, 1999, (pursuant to its authority in 
Section 4(k)(1-3) of the Bank Holding Company Act), are activities that 
a financial holding company may engage in, until the Commission so 
determines.
    (b)(1) Notice requirement for consumers who are your customers on 
the compliance date. By July 1, 2001, you must have provided an initial 
notice, as required by Sec.  313.4, to consumers who are your customers 
on July 1, 2001.
    (2) Example. You provide an initial notice to consumers who are your 
customers on July 1, 2001, if, by that date, you have established a 
system for providing an initial notice to all new customers and have 
mailed the initial notice to all your existing customers.
    (c) Two-year grandfathering of service agreements. Until July 1, 
2002, a contract that you have entered into with a nonaffiliated third 
party to perform services for you or functions on your behalf satisfies 
the provisions of Sec.  313.13(a)(1) of this part, even if the contract 
does not include a requirement that the third party maintain the 
confidentiality of nonpublic personal information, as long as you 
entered into the contract on or before July 1, 2000.

                 Appendix A to Part 313--Sample Clauses

    Financial institutions, including a group of financial holding 
company affiliates that use a common privacy notice, may use the 
following sample clauses, if the clause is accurate for each institution 
that uses the notice. (Note that disclosure of certain information, such 
as assets and income, and information from a consumer reporting agency, 
may give rise to obligations under the Fair Credit Reporting Act, such 
as a requirement to permit a consumer to opt out of disclosures to 
affiliates or designation as a consumer reporting agency if disclosures 
are made to nonaffiliated third parties.)

      A-1--Categories of Information You Collect (All Institutions)

    You may use this clause, as applicable, to meet the requirement of 
Sec.  313.6(a)(1) to describe the categories of nonpublic personal 
information you collect.

                            Sample Clause A-1

    We collect nonpublic personal information about you from the 
following sources:
     Information we receive from you on applications 
or other forms;
     Information about your transactions with us, our 
affiliates, or others; and
     Information we receive from a consumer reporting 
agency.

A-2--Categories of Information You Disclose (Institutions That Disclose 
                       Outside of the Exceptions)

    You may use one of these clauses, as applicable, to meet the 
requirement of Sec.  313.6(a)(2) to describe the categories of nonpublic 
personal information you disclose. You may use these clauses if you 
disclose nonpublic personal information other than as permitted by the 
exceptions in Sec. Sec.  313.13, 313.14, and 313.15.

                    Sample Clause A-2, Alternative 1

    We may disclose the following kinds of nonpublic personal 
information about you:
     Information we receive from you on applications 
or other forms, such as [provide illustrative examples, such as ``your 
name, address, social security number, assets, and income''];
     Information about your transactions with us, our 
affiliates, or others, such as [provide illustrative examples, such as 
``your account balance, payment history, parties to transactions, and 
credit card usage'']; and
     Information we receive from a consumer reporting 
agency, such as [provide illustrative examples, such as ``your 
creditworthiness and credit history''].

[[Page 412]]

                    Sample Clause A-2, Alternative 2

    We may disclose all of the information that we collect, as described 
[describe location in the notice, such as ``above'' or ``below''].

  A-3--Categories of Information You Disclose and Parties to Whom You 
 Disclose (Institutions That Do Not Disclose Outside of the Exceptions)

    You may use this clause, as applicable, to meet the requirements of 
Sec. Sec.  313.6(a)(2), (3), and (4) to describe the categories of 
nonpublic personal information about customers and former customers that 
you disclose and the categories of affiliates and nonaffiliated third 
parties to whom you disclose. You may use this clause if you do not 
disclose nonpublic personal information to any party, other than as 
permitted by the exceptions in Sec. Sec.  313.14, and 313.15.

                            Sample Clause A-3

    We do not disclose any nonpublic personal information about our 
customers or former customers to anyone, except as permitted by law.

   A-4--Categories of Parties to Whom You Disclose (Institutions That 
                   Disclose Outside of the Exceptions)

    You may use this clause, as applicable, to meet the requirement of 
Sec.  313.6(a)(3) to describe the categories of affiliates and 
nonaffiliated third parties to whom you disclose nonpublic personal 
information. You may use this clause if you disclose nonpublic personal 
information other than as permitted by the exceptions in Sec. Sec.  
313.13, 313.14, and 313.15, as well as when permitted by the exceptions 
in Sec. Sec.  313.14, and 313.15.

                            Sample Clause A-4

    We may disclose nonpublic personal information about you to the 
following types of third parties:
     Financial service providers, such as [provide 
illustrative examples, such as ``mortgage bankers, securities broker-
dealers, and insurance agents''];
     Non-financial companies, such as [provide 
illustrative examples, such as ``retailers, direct marketers, airlines, 
and publishers'']; and
     Others, such as [provide illustrative examples, 
such as ``non-profit organizations''].
    We may also disclose nonpublic personal information about you to 
nonaffiliated third parties as permitted by law.

             A-5--Service Provider/Joint Marketing Exception

    You may use one of these clauses, as applicable, to meet the 
requirements of Sec.  313.6(a)(5) related to the exception for service 
providers and joint marketers in Sec.  313.13. If you disclose nonpublic 
personal information under this exception, you must describe the 
categories of nonpublic personal information you disclose and the 
categories of third parties with whom you have contracted.

                    Sample Clause A-5, Alternative 1

    We may disclose the following information to companies that perform 
marketing services on our behalf or to other financial institutions with 
whom we have joint marketing agreements:
     Information we receive from you on applications 
or other forms, such as [provide illustrative examples, such as ``your 
name, address, social security number, assets, and income''];
     Information about your transactions with us, our 
affiliates, or others, such as [provide illustrative examples, such as 
``your account balance, payment history, parties to transactions, and 
credit card usage'']; and
     Information we receive from a consumer reporting 
agency, such as [provide illustrative examples, such as ``your 
creditworthiness and credit history''].

                    Sample Clause A-5, Alternative 2

    We may disclose all of the information we collect, as described 
[describe location in the notice, such as ``above'' or ``below''] to 
companies that perform marketing services on our behalf or to other 
financial institutions with whom we have joint marketing agreements.

A-6--Explanation of Opt Out Right (Institutions that Disclose Outside of 
                             the Exceptions)

    You may use this clause, as applicable, to meet the requirement of 
Sec.  313.6(a)(6) to provide an explanation of the consumer's right to 
opt out of the disclosure of nonpublic personal information to 
nonaffiliated third parties, including the method(s) by which the 
consumer may exercise that right. You may use this clause if you 
disclose nonpublic personal information other than as permitted by the 
exceptions in Sec. Sec.  313.13, 313.14, and 313.15.

                            Sample Clause A-6

    If you prefer that we not disclose nonpublic personal information 
about you to nonaffiliated third parties, you may opt out of those 
disclosures, that is, you may direct us not to make those disclosures 
(other than disclosures permitted by law). If you wish to opt out of 
disclosures to nonaffiliated third parties, you may [describe a 
reasonable means of opting out, such as ``call the following toll-free 
number: (insert number)''].

[[Page 413]]

          A-7--Confidentiality and Security (All Institutions)

    You may use this clause, as applicable, to meet the requirement of 
Sec.  313.6(a)(8) to describe your policies and practices with respect 
to protecting the confidentiality and security of nonpublic personal 
information.

                            Sample Clause A-7

    We restrict access to nonpublic personal information about you to 
[provide an appropriate description, such as ``those employees who need 
to know that information to provide products or services to you'']. We 
maintain physical, electronic, and procedural safeguards that comply 
with federal regulations to guard your nonpublic personal information.



PART 314_STANDARDS FOR SAFEGUARDING CUSTOMER INFORMATION--Table of Contents




Sec.
314.1 Purpose and scope.
314.2 Definitions.
314.3 Standards for safeguarding customer information.
314.4 Elements.
314.5 Effective date.

    Authority: 15 U.S.C. 6801(b), 6805(b)(2).

    Source: 67 FR 36493, May 23, 2002, unless otherwise noted.



Sec.  314.1  Purpose and scope.

    (a) Purpose. This part, which implements sections 501 and 505(b)(2) 
of the Gramm-Leach-Bliley Act, sets forth standards for developing, 
implementing, and maintaining reasonable administrative, technical, and 
physical safeguards to protect the security, confidentiality, and 
integrity of customer information.
    (b) Scope. This part applies to the handling of customer information 
by all financial institutions over which the Federal Trade Commission 
(``FTC'' or ``Commission'') has jurisdiction. This part refers to such 
entities as ``you.'' This part applies to all customer information in 
your possession, regardless of whether such information pertains to 
individuals with whom you have a customer relationship, or pertains to 
the customers of other financial institutions that have provided such 
information to you.



Sec.  314.2  Definitions.

    (a) In general. Except as modified by this part or unless the 
context otherwise requires, the terms used in this part have the same 
meaning as set forth in the Commission's rule governing the Privacy of 
Consumer Financial Information, 16 CFR part 313.
    (b) Customer information means any record containing nonpublic 
personal information as defined in 16 CFR 313.3(n), about a customer of 
a financial institution, whether in paper, electronic, or other form, 
that is handled or maintained by or on behalf of you or your affiliates.
    (c) Information security program means the administrative, 
technical, or physical safeguards you use to access, collect, 
distribute, process, protect, store, use, transmit, dispose of, or 
otherwise handle customer information.
    (d) Service provider means any person or entity that receives, 
maintains, processes, or otherwise is permitted access to customer 
information through its provision of services directly to a financial 
institution that is subject to this part.



Sec.  314.3  Standards for safeguarding customer information.

    (a) Information security program. You shall develop, implement, and 
maintain a comprehensive information security program that is written in 
one or more readily accessible parts and contains administrative, 
technical, and physical safeguards that are appropriate to your size and 
complexity, the nature and scope of your activities, and the sensitivity 
of any customer information at issue. Such safeguards shall include the 
elements set forth in Sec.  314.4 and shall be reasonably designed to 
achieve the objectives of this part, as set forth in paragraph (b) of 
this section.
    (b) Objectives. The objectives of section 501(b) of the Act, and of 
this part, are to:
    (1) Insure the security and confidentiality of customer information;
    (2) Protect against any anticipated threats or hazards to the 
security or integrity of such information; and
    (3) Protect against unauthorized access to or use of such 
information that

[[Page 414]]

could result in substantial harm or inconvenience to any customer.



Sec.  314.4  Elements.

    In order to develop, implement, and maintain your information 
security program, you shall:
    (a) Designate an employee or employees to coordinate your 
information security program.
    (b) Identify reasonably foreseeable internal and external risks to 
the security, confidentiality, and integrity of customer information 
that could result in the unauthorized disclosure, misuse, alteration, 
destruction or other compromise of such information, and assess the 
sufficiency of any safeguards in place to control these risks. At a 
minimum, such a risk assessment should include consideration of risks in 
each relevant area of your operations, including:
    (1) Employee training and management;
    (2) Information systems, including network and software design, as 
well as information processing, storage, transmission and disposal; and
    (3) Detecting, preventing and responding to attacks, intrusions, or 
other systems failures.
    (c) Design and implement information safeguards to control the risks 
you identify through risk assessment, and regularly test or otherwise 
monitor the effectiveness of the safeguards' key controls, systems, and 
procedures.
    (d) Oversee service providers, by:
    (1) Taking reasonable steps to select and retain service providers 
that are capable of maintaining appropriate safeguards for the customer 
information at issue; and
    (2) Requiring your service providers by contract to implement and 
maintain such safeguards.
    (e) Evaluate and adjust your information security program in light 
of the results of the testing and monitoring required by paragraph (c) 
of this section; any material changes to your operations or business 
arrangements; or any other circumstances that you know or have reason to 
know may have a material impact on your information security program.



Sec.  314.5  Effective date.

    (a) Each financial institution subject to the Commission's 
jurisdiction must implement an information security program pursuant to 
this part no later than May 23, 2003.
    (b) Two-year grandfathering of service contracts. Until May 24, 
2004, a contract you have entered into with a nonaffiliated third party 
to perform services for you or functions on your behalf satisfies the 
provisions of Sec.  314.4(d), even if the contract does not include a 
requirement that the service provider maintain appropriate safeguards, 
as long as you entered into the contract not later than June 24, 2002.

[[Page 415]]



                   SUBCHAPTER D_TRADE REGULATION RULES





PART 408_UNFAIR OR DECEPTIVE ADVERTISING AND LABELING OF CIGARETTES IN 
RELATION TO THE HEALTH HAZARDS OF SMOKING--Table of Contents




    Cross Reference: For a statement of basis and purpose of Trade 
Regulation Rule, see 29 FR 8325 of July 2, 1964.

[30 FR 9485, July 29, 1965]



PART 410_DECEPTIVE ADVERTISING AS TO SIZES OF VIEWABLE PICTURES SHOWN 
BY TELEVISION RECEIVING SETS--Table of Contents






Sec.  410.1  The Rule.

    In connection with the sale of television receiving sets, in 
commerce, as ``commerce'' is defined in the Federal Trade Commission 
Act, it is an unfair method of competition and an unfair and deceptive 
act or practice to use any figure or size designation to refer to the 
size of the picture shown by a television receiving set or the picture 
tube contained therein unless such indicated size is the actual size of 
the viewable picture area measured on a single plane basis. If the 
indicated size is other than the horizontal dimension of the actual 
viewable picture area such size designation shall be accompanied by a 
statement, in close connection and conjunction therewith, clearly and 
conspicuously showing the manner of measurement.

    Note 1: For the purposes of this part, measurement of the picture 
area on a single plane basis refers to a measurement of the distance 
between the outer extremities (sides) of the picture area which does not 
take into account the curvature of the tube.
    Note 2: Any referenced or footnote disclosure of the manner of 
measurement by means of the asterisk or some similar symbol does not 
satisfy the ``close connection and conjunction'' requirement of this 
part.


Examples of proper size descriptions when a television receiving set 
shows a 20-inch picture measured diagonally, a 19-inch picture measured 
horizontally, a 15-inch picture measured vertically, and a picture area 
of 262 square inches include:

``20 inch (50.80 cm) picture measured diagonally'' or
``20 inch (50.80 cm) diagonal''
``19 inch x 15 inch (48.26 cm x 38.10 cm) picture'' or
``19 inch (48.26 cm) picture'' or
``19 inch (48.26 cm)'' or
``262 square inch (1,690.32 cm. sq.) picture.''


Examples of improper size descriptions of a television set showing a 
picture of the size described above include:

``21 inch (53.34 cm) set'' or
``21 inch (53.34 cm) diagonal set'' or
``21 inch (53.34 cm) over-all diagonal'' or
    ``Brand Name 21.''

    Note 3: The numbers in parentheses reflect the metric equivalent of 
the English measurements. They are provided for information purposes 
only, and are not required to be included in the disclosures.

(38 Stat. 717, as amended, 15 U.S.C. 41-58)

[36 FR 21518, Nov. 10, 1971; 36 FR 22286, Nov. 24, 1971; as amended at 
59 FR 54812, Nov. 2, 1994]



PART 423_CARE LABELING OF TEXTILE WEARING APPAREL AND CERTAIN PIECE GOODS 
AS AMENDED--Table of Contents




Sec.
423.1 Definitions.
423.2 Terminology.
423.3 What this regulation does.
423.4 Who is covered.
423.5 Unfair or deceptive acts or practices.
423.6 Textile wearing apparel.
423.7 Certain piece goods.
423.8 Exemptions.
423.9 Conflict with flammability standards.
423.10 Stayed or invalid parts.

Appendix A to Part 423--Glossary of Standard Terms

    Authority: 38 Stat. 717, as amended; (15 U.S.C. 41, et seq.)

    Source: 48 FR 22743, May 20, 1983; 48 FR 24869, June 3, 1983, unless 
otherwise noted.



Sec.  423.1  Definitions.

    (a) Care label means a permanent label or tag, containing regular 
care information and instructions, that is attached or affixed in such a 
manner that it will not become separated from the product and will 
remain legible during the useful life of the product.

[[Page 416]]

    (b) Certain Piece Goods means textile products sold by the piece 
from bolts or rolls for the purpose of making home sewn textile wearing 
apparel. This includes remnants, the fiber content of which is known, 
that are cut by or for a retailer but does not include manufacturers' 
remnants, up to ten yards long, that are clearly and conspicuously 
marked pound goods or fabrics of undetermined origin (i.e., fiber 
content is not known and cannot be easily ascertained) and trim, up to 
five inches wide.
    (c) Dryclean means a commercial process by which soil is removed 
from products or specimens in a machine which uses any common organic 
solvent (e.g. petroleum, perchlorethylene, fluorocarbon). The process 
may also include adding moisture to the solvent, up to 75% relative 
humidity, hot tumble drying up to 160 degrees F (71 degrees C) and 
restoration by steam press or steam-air finishing.
    (d) Machine Wash means a process by which soil is removed from 
products in a specially designed machine using water, detergent or soap 
and agitation. When no temperature is given, e.g., warm or cold, hot 
water up to 145 degrees F (63 degrees C) can be regularly used.
    (e) Regular Care means customary and routine care, not spot care.
    (f) Textile Product means any commodity, woven, knit or otherwise 
made primarily of fiber, yarn or fabric and intended for sale or resale, 
requiring care and maintenance to effectuate ordinary use and enjoyment.
    (g) Textile Wearing Apparel means any finished garment or article of 
clothing made from a textile product that is customarily used to cover 
or protect any part of the body, including hosiery, excluding footwear, 
gloves, hats or other articles used exclusively to cover or protect the 
head or hands.

[48 FR 22743, May 20, 1983; 48 FR 24869, June 3, 1983, as amended at 65 
FR 47275, Aug. 2, 2000]



Sec.  423.2  Terminology.

    (a) Any appropriate terms may be used on care labels or care 
instructions so long as they clearly and accurately describe regular 
care procedures and otherwise fulfill the requirements of this 
regulation.
    (b) Any appropriate symbols may be used on care labels or care 
instructions, in addition to the required appropriate terms so long as 
the terms fulfill the requirements of this part. See Sec.  423.8(g) for 
conditional exemption allowing the use of symbols without terms.
    (c) The terminology set forth in appendix A may be used to fulfill 
the requirements of this regulation.

[48 FR 22743, May 20, 1983; 48 FR 24869, June 3, 1983; 62 FR 29008, May 
29, 1997]



Sec.  423.3  What this regulation does.

    This regulation requires manufacturers and importers of textile 
wearing apparel and certain piece goods, in or affecting commerce, as 
``commerce'' is defined in the Federal Trade Commission Act, to provide 
regular care instructions at the time such products are sold to 
purchasers through the use of care labels or other methods described in 
this rule.



Sec.  423.4  Who is covered.

    Manufacturers and importers of textile wearing apparel and certain 
piece goods are covered by this regulation. This includes any person or 
organization that directs or controls the manufacture or importation of 
covered products.



Sec.  423.5  Unfair or deceptive acts or practices.

    (a) Textile wearing apparel and certain piece goods. In connection 
with the sale, in or affecting commerce, of textile wearing apparel and 
certain piece goods, it is an unfair or deceptive act or practice for a 
manufacturer or importer:
    (1) To fail to disclose to a purchaser, prior to sale, instructions 
which prescribe a regular care procedure necessary for the ordinary use 
and enjoyment of the product;
    (2) To fail to warn a purchaser, prior to sale, when the product 
cannot be cleaned by any cleaning procedure, without being harmed;
    (3) To fail to warn a purchaser, prior to sale, when any part of the 
prescribed regular care procedure, which a consumer or professional 
cleaner could

[[Page 417]]

reasonably be expected to use, would harm the product or others being 
cleaned with it;
    (4) To fail to provide regular care instructions and warnings, 
except as to piece goods, in a form that can be referred to by the 
consumer throughout the useful life of the product;
    (5) To fail to possess, prior to sale, a reasonable basis for all 
regular care information disclosed to the purchaser.
    (b) Violations of this regulation. The Commission has adopted this 
regulation to prevent the unfair or deceptive acts or practices, defined 
in paragraph (a) of this section. Each manufacturer or importer covered 
by this regulation must comply with the requirements in Sec. Sec.  423.2 
and 423.6 through 423.8 of this regulation. Any manufacturer or importer 
who complies with the requirements of Sec. Sec.  423.2 and 423.6 through 
423.8 does not violate this regulation.

(Approved by the Office of Management and Budget under control number 
3084-0046)



Sec.  423.6  Textile wearing apparel.

    This section applies to textile wearing apparel.
    (a) Manufacturers and importers must attach care labels so that they 
can be seen or easily found when the product is offered for sale to 
consumers. If the product is packaged, displayed, or folded so that 
customers cannot see or easily find the label, the care information must 
also appear on the outside of the package or on a hang tag fastened to 
the product.
    (b) Care labels must state what regular care is needed for the 
ordinary use of the product. In general, labels for textile wearing 
apparel must have either a washing instruction or a drycleaning 
instruction. If a washing instruction is included, it must comply with 
the requirements set forth in paragraph (b)(1) of this section. If a 
drycleaning instruction is included, it must comply with the 
requirements set forth in paragraph (b)(2) of this section. If either 
washing or drycleaning can be used on the product, the label need have 
only one of these instructions. If the product cannot be cleaned by any 
available cleaning method without being harmed, the label must so state. 
[For example, if a product would be harmed both by washing and by 
drycleaning, the label might say ``Do not wash--do not dryclean,'' or 
``Cannot be successfully cleaned.''] The instructions for washing and 
drycleaning are as follows:
    (1) Washing, drying, ironing, bleaching and warning instructions 
must follow these requirements:
    (i) Washing. The label must state whether the product should be 
washed by hand or machine. The label must also state a water 
temperature--in terms such as cold, warm, or hot--that may be used. 
However, if the regular use of hot water up to 145 degrees F (63 degrees 
C) will not harm the product, the label need not mention any water 
temperature. [For example, Machine wash means hot, warm or cold water 
can be used.]
    (ii) Drying. The label must state whether the product should be 
dried by machine or by some other method. If machine drying is called 
for, the label must also state a drying temperature that may be used. 
However, if the regular use of a high temperature will not harm the 
product, the label need not mention any drying temperature. [For 
example, Tumble dry means that a high, medium, or low temperature 
setting can be used.]
    (iii) Ironing. Ironing must be mentioned on a label only if it will 
be needed on a regular basis to preserve the appearance of the product, 
or if it is required under paragraph (b)(1)(v) of this section, 
Warnings. If ironing is mentioned, the label must also state an ironing 
temperature that may be used. However, if the regular use of a hot iron 
will not harm the product, the label need not mention any ironing 
temperature.
    (iv) Bleaching. (A) If all commercially available bleaches can 
safely be used on a regular basis, the label need not mention bleaching.
    (B) If all commercially available bleaches would harm the product 
when used on a regular basis, the label must say ``No bleach'' or ``Do 
not bleach.''
    (C) If regular use of chlorine bleach would harm the product, but 
regular use of a non-chlorine bleach would not, the label must say 
``Only non-chlorine bleach, when needed.''
    (v) Warnings. (A) If there is any part of the prescribed washing 
procedure

[[Page 418]]

which consumers can reasonably be expected to use that would harm the 
product or others being washed with it in one or more washings, the 
label must contain a warning to this effect. The warning must use words 
``Do not,'' ``No,'' ``Only,'' or some other clear wording. [For example, 
if a shirt is not colorfast, its label should state ``Wash with like 
colors'' or ``Wash separately.'' If a pair of pants will be harmed by 
ironing, its label should state ``Do not iron.'']
    (B) Warnings are not necessary for any procedure that is an 
alternative to the procedure prescribed on the label. [For example, if 
an instruction states ``Dry flat,'' it is not necessary to give the 
warning ``Do not tumble dry.'']
    (2) Drycleaning--(i) General. If a drycleaning instruction is 
included on the label, it must also state at least one type of solvent 
that may be used. However, if all commercially available types of 
solvent can be used, the label need not mention any types of solvent. 
The terms ``Drycleanable'' or ``Commercially Dryclean'' may not be used 
in an instruction. [For example, if drycleaning in perchlorethylene 
would harm a coat, the label might say ``Professionally dryclean: 
fluorocarbon or petroleum.'']
    (ii) Warnings. (A) If there is any part of the drycleaning procedure 
which consumers or drycleaners can reasonably be expected to use that 
would harm the product or others being cleaned with it, the label must 
contain a warning to this effect. The warning must use the words ``Do 
not,'' ``No,'' ``Only,'' or some other clear wording. [For example, the 
drycleaning process normally includes moisture addition to solvent up to 
75% relative humidity, hot tumble drying up to 160 degrees F and 
restoration by steam press or steam-air finish. If a product can be 
drycleaned in all solvents but steam should not be used, its label 
should state ``Professionally dryclean. No steam.'']
    (B) Warnings are not necessary to any procedure which is an 
alternative to the procedure prescribed on the label. [For example, if 
an instruction states ``Professionally dryclean, fluorocarbon,'' it is 
not necessary to give the warning ``Do not use per chlor ethyl ene.'']
    (c) A manufacturer or importer must establish a reasonable basis for 
care information by processing prior to sale:
    (1) Reliable evidence that the product was not harmed when cleaned 
reasonably often according to the instructions on the label, including 
instructions when silence has a meaning. [For example, if a shirt is 
labeled ``Machine wash. Tumble dry. Cool iron.,'' the manufacturer or 
importer must have reliable proof that the shirt is not harmed when 
cleaned by machine washing (in hot water), with any type of bleach, 
tumble dried (at a high setting), and ironed with a cool iron]; or
    (2) Reliable evidence that the product or a fair sample of the 
product was harmed when cleaned by methods warned against on the label. 
However, the manufacturer or importer need not have proof of harm when 
silence does not constitute a warning. [For example, if a shirt is 
labeled ``Machine wash warm. Tumble dry medium'', the manufacturer need 
not have proof that the shirt would be harmed if washed in hot water or 
dried on high setting]; or
    (3) Reliable evidence, like that described in paragraph (c)(1) or 
(2) of this section, for each component part of the product in 
conjunction with reliable evidence for the garment as a whole; or
    (4) Reliable evidence that the product or a fair sample of the 
product was successfully tested. The tests may simulate the care 
suggested or warned against on the label; or
    (5) Reliable evidence of current technical literature, past 
experience, or the industry expertise supporting the care information on 
the label; or
    (6) Other reliable evidence.

[48 FR 22743, May 20, 1983; 48 FR 24869, June 3, 1983, as amended at 65 
FR 47275, Aug. 2, 2000]



Sec.  423.7  Certain piece goods.

    This section applies to certain piece goods.
    (a) Manufacturers and importers of certain piece goods must provide 
care information clearly and conspicuously on the end of each bolt or 
roll.
    (b) Care information must say what regular care is needed for the 
ordinary

[[Page 419]]

use of the product, pursuant to the instructions set forth in Sec.  
423.6. Care information on the end of the bolt need only address 
information applicable to the fabric.



Sec.  423.8  Exemptions.

    (a) Any item of textile wearing apparel, without pockets, that is 
totally reversible (i.e., the product is designed to be used with either 
side as the outer part or face) is exempt from the care label 
requirement.
    (b) Manufacturers or importers can ask for an exemption from the 
care label requirement for any other textile wearing apparel product or 
product line, if the label would harm the appearance or usefulness of 
the product. The request must be made in writing to the Secretary of the 
Commission. The request must be accompanied by a labeled sample of the 
product and a full statement explaining why the request should be 
granted.
    (c) If an item is exempt from care labeling under paragraph (a) or 
(b), of this section the consumers still must be given the required care 
information for the product. However, the care information can be put on 
a hang tag, on the package, or in some other conspicuous place, so that 
consumers will be able to see the care information before buying the 
product.
    (d) Manufacturers and importers of products covered by Sec.  423.5 
are exempt from the requirement for a permanent care label if the 
product can be cleaned safely under the harshest procedures. This 
exemption is available only if there is reliable proof that all of the 
following washing and drycleaning procedures can safely be used on a 
product:
    (1) Machine washing in hot water;
    (2) Machine drying at a high setting;
    (3) Ironing at a hot setting;
    (4) Bleaching with all commercially available bleaches;
    (5) Drycleaning with all commercially available solvents. In such 
case, the statement ``wash or dry clean, any normal method'' must appear 
on a hang tag, on the package, or in some other conspicuous place, so 
that consumers will be able to see the statement before buying the 
product.

If a product meets the requirements outlined above, it is automatically 
exempt from the care label requirement. It is not necessary to file a 
request for this exemption.
    (e) Manufacturers and importers need not provide care information 
with products sold to institutional buyers for commercial use.
    (f) All exemption granted under Sec.  423.1(c) (1) or (2) or the 
Care Labeling Rule issued on December 9, 1971, will continue to be in 
effect if the product still meets the standards on which the original 
exemption was based. Otherwise, the exemption is automatically revoked.
    (g) The symbol system developed by the American Society for Testing 
and Materials (ASTM) and designated as ASTM Standard D5489-96c Guide to 
Care Symbols for Care Instructions on Consumer Textile Products may be 
used on care labels or care instructions in lieu of terms so long as the 
symbols fulfill the requirements of this part. In addition, symbols from 
the symbol system designated as ASTM Standard D5489-96c may be combined 
with terms so long as the symbols and terms used fulfill the 
requirements of this part. Provided, however, that for the 18-month 
period beginning on July 1, 1997, such symbols may be used on care 
labels in lieu of terms only if an explanation of the meaning of the 
symbols used on the care label in terms is attached to, or provided 
with, the item of textile wearing apparel. This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of ASTM 
Standard D5489-96c Guide to Care Symbols for Care Instructions on 
Textile Products may be obtained from the American Society for Testing 
and Materials, 100 Barr Harbor Drive, West Conshohocken, PA 19428, or 
may be inspected at the Federal Trade Commission, room 130, 600 
Pennsylvania Avenue, NW., Washington, DC, or at the Office of the 
Federal Register, suite 700, 800 North Capitol Street, NW., Washington, 
DC.

(15 U.S.C. 41-58)

[48 FR 22743, May 20, 1983; 48 FR 24869, June 3, 1983; 62 FR 29008, May 
29, 1997]

[[Page 420]]



Sec.  423.9  Conflict with flammability standards.

    If there is a conflict between this regulation and any regulations 
issued under the Flammable Fabrics Act, the Flammable Fabics regulation 
govern over this one.



Sec.  423.10  Stayed or invalid parts.

    If any part of this regulation is stayed or held invalid, the rest 
of it will stay in force.

           Appendix A to Part 423--Glossary of Standard Terms

1. Washing, Machine Methods:
    a. ``Machine wash''--a process by which soil may be removed from 
products or specimens through the use of water, detergent or soap, 
agitation, and a machine designed for this purpose. When no temperature 
is given, e.g., ``warm'' or ``cold,'' hot water up to 145 degrees F (63 
degrees C) can be regularly used.
    b. ``Hot''--initial water temperature ranging from 112 to 145 
degrees F [45 to 63 degrees C].
    c. ``Warm''--initial water temperature ranging from 87 to 111 
degrees F [31 to 44 degrees C].
    d. ``Cold''--initial water temperature up to 86 degrees F [30 
degrees C].
    e. ``Do not have commercially laundered''--do not employ a laundry 
which uses special formulations, sour rinses, extermely large loads or 
extermely high temperatures or which otherwise is employed for 
commercial, industrial or institutional use. Employ laundering methods 
designed for residential use or use in a self-service establishment.
    f. ``Small load''--smaller than normal washing load.
    g. ``Delicate cycle'' or ``gentle cycle''--slow agitation and 
reduced time.
    h. ``Durable press cycle'' or ``permanent press cycle''--cool down 
rinse or cold rinse before reduced spinning.
    i. ``Separately''--alone.
    j. ``With like colors''--with colors of similar hue and intensity.
    k. ``Wash inside out''--turn product inside out to protect face of 
fabric.
    l. ``Warm rinse''--initial water temperature setting 90[deg] to 110 
[deg]F (32[deg] to 43 [deg]C).
    m. ``Cold rinse''--initial water temperature setting same as cold 
water tap up to 85 [deg]F (29 [deg]C).
    n. ``Rinse thoroughly''--rinse several times to remove detergent, 
soap, and bleach.
    o. ``No spin'' or ``Do not spin''--remove material start of final 
spin cycle.
    p. ``No wring'' or ``Do not wring''--do not use roller wringer, nor 
wring by hand.

2. Washing, Hand Methods:
    a. ``Hand wash''--a process by which soil may be manually removed 
from products or specimens through the use of water, detergent or soap, 
and gentle squeezing action. When no temperature is given, e.g., 
``warm'' or ``cold'', hot water up to 150 [deg]F (66 [deg]C) can be 
regularly used.
    b. ``Warm''--initial water temperature 90[deg] to 110 [deg]F 
(32[deg] to 43 [deg]C) (hand comfortable).
    c. ``Cold''--initial water temperature same as cold water tap up to 
85 [deg]F (29 [deg]C).
    d. ``Separately''--alone.
    e. ``With like colors''--with colors of similar hue and intensity.
    f. ``No wring or twist''--handle to avoid wrinkles and distortion.
    g. ``Rinse thoroughly''--rinse several times to remove detergent, 
soap, and bleach.
    h. ``Damp wipe only''--surface clean with damp cloth or sponge.

3. Drying, All Methods:

    a. ``Tumble dry''--use machine dryer. When no temperature setting is 
given, machine drying at a hot setting may be regularly used.
    b. ``Medium''--set dryer at medium heat.
    c. ``Low''--set dryer at low heat.
    d. ``Durable press'' or ``Permanent press''--set dryer at permanent 
press setting.
    e. ``No heat''--set dryer to operate without heat.
    f. ``Remove promptly''--when items are dry, remove immediately to 
prevent wrinkling.
    g. ``Drip dry''--hang dripping wet with or without hand shaping and 
smoothing.
    h. ``Line dry''--hang damp from line or bar in or out of doors.
    i. ``Line dry in shade''--dry away from sun.
    j. ``Line dry away from heat''--dry away from heat.
    k. ``Dry flat''--lay out horizontally for drying.
    l. ``Block to dry''--reshape to original dimensions while drying.
    m. ``Smooth by hand''--by hand, while wet, remove wrinkles, 
straighten seams and facings.

4. Ironing and Pressing:

    a. ``Iron''--Ironing is needed. When no temperature is given iron at 
the highest temperature setting may be regularly used.
    b. ``Warm iron''--medium temperature setting.
    c. ``Cool iron''--lowest temperature setting.
    d. ``Do not iron''--item not to be smoothed or finished with an 
iron.
    e. ``Iron wrong side only''--article turned inside out for ironing 
or pressing.
    f. ``No steam'' or ``Do not steam''--steam in any form not to be 
used.
    g. ``Steam only''--steaming without contact pressure.

[[Page 421]]

    h. ``Steam press'' or ``Steam iron''--use iron at steam setting.
    i. ``Iron damp''--articles to be ironed should feel moist.
    j. ``Use press cloth''--use a dry or a damp cloth between iron and 
fabric.

5. Bleaching:

    a. ``Bleach when needed''--all bleaches may be used when necessary.
    b. ``No bleach'' or ``Do not bleach''--no bleaches may be used.
    c. ``Only non-chlorine bleach, when needed''--only the bleach 
specified may be used when necessary. Chlorine bleach may not be used.

6. Washing or Drycleaning:

    a. ``Wash or dryclean, any normal method''--can be machine washed in 
hot water, can be machine dried at a high setting, can be ironed at a 
hot setting, can be bleached with all commercially available bleaches 
and can be drycleaned with all commercially available solvents.

7. Drycleaning, All Procedures:

    a. ``Dryclean''--a process by which soil may be removed from 
products or specimens in a machine which uses any common organic solvent 
(for example, petroleum, perchlorethylene, fluorocarbon) located in any 
commercial establishment. The process may include moisture addition to 
solvent up to 75% relative humidity, hot tumble drying up to 160 [deg]F 
(71 [deg]C) and restoration by steam press or steam-air finishing.
    b. ``Professionally dryclean''--use the drycleaning process but 
modified to ensure optimum results either by a drycleaning attendant or 
through the use of a drycleaning machine which permits such 
modifications or both. Such modifications or special warnings must be 
included in the care instruction.
    c. ``Petroleum'', ``Fluorocarbon'', or ``Perchlorethylene''--employ 
solvent(s) specified to dryclean the item.
    d. ``Short cycle''--reduced or minimum cleaning time, depending upon 
solvent used.
    e. ``Minimum extraction''--least possible extraction time.
    f. ``Reduced moisture'' or ``Low moisture''--decreased relative 
humidity.
    g. ``No tumble'' or ``Do not tumble''--do not tumble dry.
    h. ``Tumble warm''--tumble dry up to 120 [deg]F (49 [deg]C).
    i. ``Tumble cool''--tumble dry at room temperature.
    j. ``Cabinet dry warm''--cabinet dry up to 120 [deg]F (49 [deg]C).
    k. ``Cabinet dry cool''--cabinet dry at room temperature.
    l. ``Steam only''--employ no contact pressure when steaming.
    m. ``No steam'' or ``Do not steam''--do not use steam in pressing, 
finishing, steam cabinets or wands.

8. Leather and Suede Cleaning:
    a. ``Leather clean''--have cleaned only by a professional cleaner 
who uses special leather or suede care methods.

[48 FR 22743, May 20, 1983; 48 FR 24868, June 3, 1983; 48 FR 27225, June 
14, 1983, as amended at 65 FR 47275, Aug. 2, 2000]



PART 424_RETAIL FOOD STORE ADVERTISING AND MARKETING PRACTICES--Table of Contents




Sec.
424.1 Unfair or deceptive acts or practices.
424.2 Defenses.

    Authority: 88 Stat. 2193, as amended: 15 U.S.C. 57a(a)(1)(B).



Sec.  424.1  Unfair or deceptive acts or practices.

    In connection with the sale of offering for sale by retail food 
stores of food, grocery products or other merchandise to consumers in or 
affecting commerce as ``commerce'' is defined in section 4 of the 
Federal Trade Commission Act, 15 U.S.C. 44, it is an unfair or deceptive 
act or practice in violation of section 5(a)(1) of the Federal Trade 
Commission Act, 15 U.S.C. 45(a)(1), to offer any such products for sale 
at a stated price, by means of an advertisement disseminated in an area 
served by any stores which are covered by the advertisement, if those 
stores do not have the advertised products in stock and readily 
available to customers during the effective period of the advertisement, 
unless the advertisement clearly and adequately discloses that supplies 
of the advertised products are limited or the advertised products are 
available only at some outlets.

[54 FR 35467, Aug. 28, 1989]



Sec.  424.2  Defenses.

    No violation of Sec.  424.1 shall be found if:
    (a) The advertised products were ordered in adequate time for 
delivery in quantities sufficient to meet reasonably anticipated demand;
    (b) The food retailer offers a ``raincheck'' for the advertised 
products;
    (c) The food retailer offers at the advertised price or at a 
comparable price reduction a similar product that is at

[[Page 422]]

least comparable in value to the advertised product; or
    (d) The food retailer offers other compensation at least equal to 
the advertised value.

              Dissenting Statement of Commissioner Calvani

    I dissent from the Commission's decision today to amend the Retail 
Food Store Advertising and Marketing Practices Trade Regulation Rule 
(the Unavailability Rule). The Commission has acknowledged today that 
the original Unavailability Rule is not justified, and approved 
amendments designed to lower its costs to grocers. However, in my view, 
common sense tells us that in the highly competitive grocery store 
business, where consumers return week after week to the same store, any 
supermarket that frustrates its customers through unavailability of 
advertised items will not long keep those customers. In other words, it 
is clear to me that existing market forces adequately police 
unavailability, and that, therefore, no Federal Trade Commission rule is 
necessary, amended or otherwise. The Commission's action today to retain 
even an amended Unavailability Rule does not conform to common sense.

  Statement of Commissioner Andrew J. Strenio, Jr., Retail Food Store 
                Advertising and Marketing Practices Rule

    Although revising the ``Unavailability Rule'' has a certain 
intuitive appeal, there is insufficient evidence on the record to 
conclude that these changes will result in net consumer benefits. 
Accordingly, I could not support amending the Rule in this manner. 
However, now that the step has been taken, it is to be hoped that 
experience will bear out the optimistic expectations of the Commission 
majority.

[54 FR 35467, Aug. 28, 1989]



PART 425_USE OF PRENOTIFI CATION NEGATIVE OPTION PLANS--Table of Contents






Sec.  425.1  The rule.

    (a) In connection with the sale, offering for sale, or distribution 
of goods and merchandise in or affecting commerce, as ``commerce'' is 
defined in the Federal Trade Commission Act, it is an unfair or 
deceptive act or practice, for a seller in connection with the use of 
any negative option plan to fail to comply with the following 
requirements:
    (1) Promotional material shall clearly and conspicuously disclose 
the material terms of the plan, including:
    (i) That aspect of the plan under which the subscriber must notify 
the seller, in the manner provided for by the seller, if he does not 
wish to purchase the selection;
    (ii) Any obligation assumed by the subscriber to purchase a minimum 
quantity of merchandise;
    (iii) The right of a contract-complete subscriber to cancel his 
membership at any time;
    (iv) Whether billing charges will include an amount for postage and 
handling;
    (v) A disclosure indicating that the subscriber will be provided 
with at least ten (10) days in which to mail any form, contained in or 
accompanying an announcement identifying the selection, to the seller;
    (vi) A disclosure that the seller will credit the return of any 
selections sent to a subscriber, and guarantee to the Postal Service or 
the subscriber postage to return such selections to the seller when the 
announcement and form are not received by the subscriber in time to 
afford him at least ten (10) days in which to mail his form to the 
seller;
    (vii) The frequency with which the announcements and forms will be 
sent to the subscriber and the maximum number of announcements and forms 
which will be sent to him during a 12-month period.
    (2) Prior to sending any selection, the seller shall mail to its 
subscribers, within the time specified by paragraph (a)(3) of this 
section:
    (i) An announcement identifying the selection;
    (ii) A form, contained in or accompanying the announcement, clearly 
and conspicuously disclosing that the subscriber will receive the 
selection identified in the announcement unless he instructs the seller 
that he does not want the selection, designating a procedure by which 
the form may be used for the purpose of enabling the subscriber so to 
instruct the seller, and specifying either the return date or the 
mailing date.
    (3) The seller shall mail the announcement and form either at least

[[Page 423]]

twenty (20) days prior to the return date or at least fifteen (15) days 
prior to the mailing date, or provide a mailing date at least ten (10) 
days after receipt by the subscriber, provided, however, that whichever 
system the seller chooses for mailing the announcement and form, such 
system must provide the subscriber with at least ten (10) days in which 
to mail his form.
    (b) In connection with the sale or distribution of goods and 
merchandise in or affecting commerce, as ``commerce'' is defined in the 
Federal Trade Commission Act, it shall constitute an unfair or deceptive 
act or practice for a seller in connection with the use of any negative 
option plan to:
    (1) Refuse to credit, for the full invoiced amount thereof, the 
return of any selection sent to a subscriber, and to guarantee to the 
Postal Service or the subscriber postage adequate to return such 
selection to the seller, when:
    (i) The selection is sent to a subscriber whose form indicating that 
he does not want to receive the selection was received by the seller by 
the return date or was mailed by the subscriber by the mailing date;
    (ii) Such form is received by the seller after the return date, but 
has been mailed by the subscriber and postmarked at least 3 days prior 
to the return date;
    (iii) Prior to the date of shipment of such selection, the seller 
has received from a contract-complete subscriber, a written notice of 
cancellation of membership adequately identifying the subscriber; 
however, this provision is applicable only to the first selection sent 
to a canceling contract-complete subscriber after the seller has 
received written notice of cancellation. After the first selection 
shipment, all selection shipments thereafter are deemed to be unordered 
merchandise pursuant to section 3009 of the Postal Reorganization Act of 
1970, as adopted by the Federal Trade Commission in its public notice, 
dated September 11, 1970;
    (iv) The announcement and form are not received by the subscriber in 
time to afford him at least ten (10) days in which to mail his form.
    (2) Fail to notify a subscriber known by the seller to be within any 
of the circumstances set forth in paragraphs (b)(1)(i) through (iv) of 
this section, that if the subscriber elects, the subscriber may return 
the selection with return postage guaranteed and receive a credit to his 
account.
    (3) Refuse to ship within 4 weeks after receipt of an order 
merchandise due subscribers as introductory and bonus merchandise, 
unless the seller is unable to deliver the merchandise originally 
offered due to unanticipated circumstances beyond the seller's control 
and promptly makes a reasonably equivalent alternative offer. However, 
where the subscriber refuses to accept alternatively offered 
introductory merchandise, but instead insists upon termination of his 
membership due to the seller's failure to provide the subscriber with 
his originally requested introductory merchandise, or any portion 
thereof, the seller must comply with the subscriber's request for 
cancellation of membership, provided the subscriber returns to the 
seller any introductory merchandise which already may have been sent 
him.
    (4) Fail to terminate promptly the membership of a properly 
identified contract-complete subscriber upon his written request.
    (5) Ship, without the express consent of the subscriber, substituted 
merchandise for that ordered by the subscriber.
    (c) For the purposes of this part:
    (1) Negative option plan refers to a contractual plan or arrangement 
under which a seller periodically sends to subscribers an announcement 
which identifies merchandise (other than annual supplements to 
previously acquired merchandise) it proposes to send to subscribers to 
such plan, and the subscribers thereafter receive and are billed for the 
merchandise identified in each such announcement, unless by a date or 
within a time specified by the seller with respect to each such 
announcement the subscribers, in conformity with the provisions of such 
plan, instruct the seller not to send the identified merchandise.
    (2) Subscriber means any person who has agreed to receive the 
benefits of, and assume the obligations entailed in, membership in any 
negative option plan and whose membership in such negative option plan 
has been approved and accepted by the seller.

[[Page 424]]

    (3) Contract-complete subscriber refers to a subscriber who has 
purchased the minimum quantity of merchandise required by the terms of 
membership in a negative option plan.
    (4) Promotional material refers to an advertisement containing or 
accompanying any device or material which a prospective subscriber sends 
to the seller to request acceptance or enrollment in a negative option 
plan.
    (5) Selection refers to the merchandise identified by a seller under 
any negative option plan as the merchandise which the subscriber will 
receive and be billed for, unless by the date, or within the period 
specified by the seller, the subscriber instructs the seller not to send 
such merchandise.
    (6) Announcement refers to any material sent by a seller using a 
negative option plan in which the selection is identified and offered to 
subscribers.
    (7) Form refers to any form which the subscriber returns to the 
seller to instruct the seller not to send the selection.
    (8) Return date refers to a date specified by a seller using a 
negative option plan as the date by which a form must be received by the 
seller to prevent shipment of the selection.
    (9) Mailing date refers to the time specified by a seller using a 
negative option plan as the time by or within which a form must be 
mailed by a subscriber to prevent shipment of the selection.

(38 Stat. 717, as amended; 15 U.S.C. 41-58)

[38 FR 4896; Feb. 22, 1973; 38 FR 6991, Mar. 15, 1973, as amended at 63 
FR 44562, Aug. 20, 1998]



PART 429_RULE CONCERNING COOLING-OFF PERIOD FOR SALES MADE AT HOMES 
OR AT CERTAIN OTHER LOCATIONS--Table of Contents




Sec.
429.0 Definitions.
429.1 The Rule.
429.2 Effect on State laws and municipal ordinances.
429.3 Exemptions.

    Authority: Sections 1-23, FTC Act, 15 U.S.C. 41-58.



Sec.  429.0  Definitions.

    For the purposes of this part the following definitions shall apply:
    (a) Door-to-Door Sale--A sale, lease, or rental of consumer goods or 
services with a purchase price of $25 or more, whether under single or 
multiple contracts, in which the seller or his representative personally 
solicits the sale, including those in response to or following an 
invitation by the buyer, and the buyer's agreement or offer to purchase 
is made at a place other than the place of business of the seller (e.g., 
sales at the buyer's residence or at facilities rented on a temporary or 
short-term basis, such as hotel or motel rooms, convention centers, 
fairgrounds and restaurants, or sales at the buyer's workplace or in 
dormitory lounges). The term door-to-door sale does not include a 
transaction:
    (1) Made pursuant to prior negotiations in the course of a visit by 
the buyer to a retail business establishment having a fixed permanent 
location where the goods are exhibited or the services are offered for 
sale on a continuing basis; or
    (2) In which the consumer is accorded the right of rescission by the 
provisions of the Consumer Credit Protection Act (15 U.S.C. 1635) or 
regulations issued pursuant thereto; or
    (3) In which the buyer has initiated the contact and the goods or 
services are needed to meet a bona fide immediate personal emergency of 
the buyer, and the buyer furnishes the seller with a separate dated and 
signed personal statement in the buyer's handwriting describing the 
situation requiring immediate remedy and expressly acknowledging and 
waiving the right to cancel the sale within 3 business days; or
    (4) Conducted and consummated entirely by mail or telephone; and 
without any other contact between the buyer and the seller or its 
representative prior to delivery of the goods or performance of the 
services; or
    (5) In which the buyer has initiated the contact and specifically 
requested the seller to visit the buyer's home for the purpose of 
repairing or performing maintenance upon the buyer's personal property. 
If, in the course of such a visit, the seller sells the buyer the

[[Page 425]]

right to receive additional services or goods other than replacement 
parts necessarily used in performing the maintenance or in making the 
repairs, the sale of those additional goods or services would not fall 
within this exclusion; or
    (6) Pertaining to the sale or rental of real property, to the sale 
of insurance, or to the sale of securities or commodities by a broker-
dealer registered with the Securities and Exchange Commission.
    (b) Consumer Goods or Services--Goods or services purchased, leased, 
or rented primarily for personal, family, or household purposes, 
including courses of instruction or training regardless of the purpose 
for which they are taken.
    (c) Seller--Any person, partnership, corporation, or association 
engaged in the door-to-door sale of consumer goods or services.
    (d) Place of Business--The main or permanent branch office or local 
address of a seller.
    (e) Purchase Price--The total price paid or to be paid for the 
consumer goods or services, including all interest and service charges.
    (f) Business Day--Any calendar day except Sunday or any federal 
holiday (e.g., New Year's Day, Presidents' Day, Martin Luther King's 
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, 
Veterans' Day, Thanksgiving Day, and Christmas Day.)

[60 FR 54186, Oct. 20, 1995]



Sec.  429.1  The Rule.

    In connection with any door-to-door sale, it constitutes an unfair 
and deceptive act or practice for any seller to:
    (a) Fail to furnish the buyer with a fully completed receipt or copy 
of any contract pertaining to such sale at the time of its execution, 
which is in the same language, e.g., Spanish, as that principally used 
in the oral sales presentation and which shows the date of the 
transaction and contains the name and address of the seller, and in 
immediate proximity to the space reserved in the contract for the 
signature of the buyer or on the front page of the receipt if a contract 
is not used and in bold face type of a minimum size of 10 points, a 
statement in substantially the following form:

    ``You, the buyer, may cancel this transaction at any time prior to 
midnight of the third business day after the date of this transaction. 
See the attached notice of cancellation form for an explanation of this 
right.''


The seller may select the method of providing the buyer with the 
duplicate notice of cancellation form set forth in paragraph (b) of this 
section, provided however, that in the event of cancellation the buyer 
must be able to retain a complete copy of the contract or receipt. 
Furthermore, if both forms are not attached to the contract or receipt, 
the seller is required to alter the last sentence in the statement above 
to conform to the actual location of the forms.
    (b) Fail to furnish each buyer, at the time the buyer signs the 
door-to-door sales contract or otherwise agrees to buy consumer goods or 
services from the seller, a completed form in duplicate, captioned 
either ``NOTICE OF RIGHT TO CANCEL'' or ``NOTICE OF CANCELLATION,'' 
which shall (where applicable) contain in ten point bold face type the 
following information and statements in the same language, e.g., 
Spanish, as that used in the contract.

                         Notice of Cancellation

[enter date of transaction]

________________________________________________________________________
(Date)

    You may CANCEL this transaction, without any Penalty or Obligation, 
within THREE BUSINESS DAYS from the above date.
    If you cancel, any property traded in, any payments made by you 
under the contract or sale, and any negotiable instrument executed by 
you will be returned within TEN BUSINESS DAYS following receipt by the 
seller of your cancellation notice, and any security interest arising 
out of the transaction will be cancelled.
    If you cancel, you must make available to the seller at your 
residence, in substantially as good condition as when received, any 
goods delivered to you under this contract or sale, or you may, if you 
wish, comply with the instructions of the seller regarding the return 
shipment of the goods at the seller's expense and risk.
    If you do make the goods available to the seller and the seller does 
not pick them up

[[Page 426]]

within 20 days of the date of your Notice of Cancellation, you may 
retain or dispose of the goods without any further obligation. If you 
fail to make the goods available to the seller, or if you agree to 
return the goods to the seller and fail to do so, then you remain liable 
for performance of all obligations under the contract.
    To cancel this transaction, mail or deliver a signed and dated copy 
of this Cancellation Notice or any other written notice, or send a 
telegram, to [Name of seller], at [address of seller's place of 
business] NOT LATER THAN MIDNIGHT OF [date].
    I HEREBY CANCEL THIS TRANSACTION.
(Date)__________________________________________________________________
(Buyer's signature)_____________________________________________________

    (c) Fail, before furnishing copies of the ``Notice of Cancellation'' 
to the buyer, to complete both copies by entering the name of the 
seller, the address of the seller's place of business, the date of the 
transaction, and the date, not earlier than the third business day 
following the date of the transaction, by which the buyer may give 
notice of cancellation.
    (d) Include in any door-to-door contract or receipt any confession 
of judgment or any waiver of any of the rights to which the buyer is 
entitled under this section including specifically the buyer's right to 
cancel the sale in accordance with the provisions of this section.
    (e) Fail to inform each buyer orally, at the time the buyer signs 
the contract or purchases the goods or services, of the buyer's right to 
cancel.
    (f) Misrepresent in any manner the buyer's right to cancel.
    (g) Fail or refuse to honor any valid notice of cancellation by a 
buyer and within 10 business days after the receipt of such notice, to: 
(i) Refund all payments made under the contract or sale; (ii) return any 
goods or property traded in, in substantially as good condition as when 
received by the seller; (iii) cancel and return any negotiable 
instrument executed by the buyer in connection with the contract or sale 
and take any action necessary or appropriate to terminate promptly any 
security interest created in the transaction.
    (h) Negotiate, transfer, sell, or assign any note or other evidence 
of indebtedness to a finance company or other third party prior to 
midnight of the fifth business day following the day the contract was 
signed or the goods or services were purchased.
    (i) Fail, within 10 business days of receipt of the buyer's notice 
of cancellation, to notify the buyer whether the seller intends to 
repossess or to abandon any shipped or delivered goods.

[37 FR 22934, Oct. 26, 1972, as amended at 38 FR 30105, Nov. 1, 1973; 38 
FR 31828, Nov. 19, 1973; 53 FR 45459, Nov. 10, 1988; 60 FR 54186, Oct. 
20, 1995]



Sec.  429.2  Effect on State laws and municipal ordinances.

    (a) The Commission is cognizant of the significant burden imposed 
upon door-to-door sellers by the various and often inconsistent State 
laws that provide the buyer the right to cancel a door-to-door sales 
transaction. However, it does not believe that this constitutes 
sufficient justification for preempting all of the provisions of such 
laws and the ordinances of the political subdivisions of the various 
States. The rulemaking record in this proceeding supports the view that 
the joint and coordinated efforts of both the Commission and State and 
local officials are required to insure that consumers who have purchased 
from a door-to-door seller something they do not want, do not need, or 
cannot afford, be accorded a unilateral right to rescind, without 
penalty, their agreements to purchase those goods or services.
    (b) This part will not be construed to annul, or exempt any seller 
from complying with, the laws of any State or the ordinances of a 
political subdivision thereof that regulate door-to-door sales, except 
to the extent that such laws or ordinances, if they permit door-to-door 
selling, are directly inconsistent with the provisions of this part. 
Such laws or ordinances which do not accord the buyer, with respect to 
the particular transaction, a right to cancel a door-to-door sale that 
is substantially the same or greater than that provided in this part, 
which permit the imposition of any fee or penalty on the buyer for the 
exercise of such right, or which do not provide for giving the buyer a 
notice of the right to cancel the transaction in substantially the same 
form and manner provided for in

[[Page 427]]

this part, are among those which will be considered directly 
inconsistent.

[60 FR 54187, Oct. 20, 1995]



Sec.  429.3  Exemptions.

    (a) The requirements of this part do not apply for sellers of 
automobiles, vans, trucks or other motor vehicles sold at auctions, tent 
sales or other temporary places of business, provided that the seller is 
a seller of vehicles with a permanent place of business.
    (b) The requirements of this part do not apply for sellers of arts 
or crafts sold at fairs or similar places.

[60 FR 54187, Oct. 20, 1995]



PART 432_POWER OUTPUT CLAIMS FOR AMPLIFIERS UTILIZED IN HOME ENTERTAINMENT 
PRODUCTS--Table of Contents




Sec.
432.1 Scope.
432.2 Required disclosures.
432.3 Standard test conditions.
432.4 Optional disclosures.
432.5 Prohibited disclosures.
432.6 Liability for violation.

    Authority: 38 Stat. 717, as amended; (15 U.S.C. 41-58).

    Source: 39 FR 15387, May 3, 1974, unless otherwise noted.



Sec.  432.1  Scope.

    (a) Except as provided in paragraph (b) of this section, this part 
shall apply whenever any power output (in watts or otherwise), power 
band or power frequency response, or distortion capability or 
characteristic is represented, either expressly or by implication, in 
connection with the advertising, sale, or offering for sale, in commerce 
as ``commerce'' is defined in the Federal Trade Commission Act, of sound 
power amplification equipment manufactured or sold for home 
entertainment purposes, such as for example, radios, record and tape 
players, radio-phonograph and/or tape combinations, component audio 
amplifiers, self-powered speakers for computers, multimedia systems and 
sound systems, and the like.
    (b) Representations shall be exempt from this part if all 
representations of performance characteristics referred to in paragraph 
(a) of this section clearly and conspicuously disclose a manufacturer's 
rated power output and that rated output does not exceed two (2) watts 
(per channel or total).
    (c) It is an unfair method of competition and an unfair or deceptive 
act or practice within the meaning of section 5(a)(1) of the Federal 
Trade Commission Act (15 U.S.C. 45(a)(1)) to violate any applicable 
provision of this part.

[39 FR 15387, May 3, 1974, as amended at 63 FR 37235, July 9, 1998]



Sec.  432.2  Required disclosures.

    (a) Whenever any direct or indirect representation is made of the 
power output, power band or power frequency response, or distortion 
characteristics of sound power amplification equipment, the following 
disclosure shall be made clearly, conspicuously, and more prominently 
than any other representations or disclosures permitted under this part: 
The manufacturer's rated minimum sine wave continuous average power 
output, in watts, per channel (if the equipment is designed to amplify 
two or more channels simultaneously) at an impedance of 8 ohms, or, if 
the amplifier is not designed for an 8-ohm impedance, at the impedance 
for which the amplifier is primarily designed, measured with all 
associated channels fully driven to rated per channel power. Provided, 
however, when measuring maximum per channel output of self-powered 
combination speaker systems that employ two or more amplifiers dedicated 
to different portions of the audio frequency spectrum, such as those 
incorporated into combination subwoofer-satellite speaker systems, only 
those channels dedicated to the same audio frequency spectrum should be 
considered associated channels that need be fully driven simultaneously 
to rated per channel power.
    (b) In addition, whenever any direct or indirect representation is 
made of the power output, power band or power frequency response, or 
distortion characteristics of sound power amplification equipment in any 
product brochure or manufacturer specification sheet, the following 
disclosures also shall be made clearly, conspicuously, and more 
prominently than any other

[[Page 428]]

representations or disclosures permitted under this part:
    (1) The manufacturer's rated power band or power frequency response, 
in Hertz (Hz), for the rated power output required to be disclosed in 
paragraph (a) of this section; and
    (2) The manufacturer's rated percentage of maximum total harmonic 
distortion at any power level from 250 mW to the rated power output, and 
its corresponding rated power band or power frequency response.

[65 FR 81239, Dec. 22, 2000]



Sec.  432.3  Standard test conditions.

    For purposes of performing the tests necessary to make the 
disclosures required under Sec.  432.2 of this part:
    (a) The power line voltage shall be 120 volts AC (230 volts when the 
equipment is made for foreign sale or use, unless a different nameplate 
rating is permanently affixed to the product by the manufacturer in 
which event the latter figure would control), RMS, using a sinusoidal 
wave containing less than 2 percent total harmonic content. In the case 
of equipment designed for battery operation only, tests shall be made 
with the battery power supply for which the particular equipment is 
designed and such test voltage must be disclosed under the required 
disclosures of Sec.  432.2 of this part. If capable of both AC and DC 
battery operation, testing shall be with AC line operation;
    (b) The AC power line frequency for domestic equipment shall be 60 
Hz and 50 Hz for equipment made for foreign sale or use;
    (c) The amplifier shall be preconditioned by simultaneously 
operating all channels at one-eighth of rated power output for one hour 
using a sinusoidal wave at a frequency of 1,000 Hz; provided, however, 
that for amplifiers utilized as a component in a self-powered subwoofer 
system, the sinusoidal wave used as a preconditioning signal may be any 
frequency within the amplifier's intended operating bandwidth that will 
allow the amplifier to be driven to one-eighth of rated power for one 
hour;
    (d) The preconditioning and testing shall be in still air and an 
ambient temperature of at least 77 [deg]F (25 [deg]C);
    (e) Rated power shall be obtainable at all frequencies within the 
rated power band without exceeding the rated maximum percentage of total 
harmonic distortion after input signals at said frequencies have been 
continuously applied at full rated power for not less than five (5) 
minutes at the amplifier's auxiliary input, or if not provided, at the 
phono input.
    (f) At all times during warm-up and testing, tone loudness-contour 
and other controls shall be preset for the flattest response.

[39 FR 15387, May 3, 1974, as amended at 65 FR 81240, Dec. 22, 2000]



Sec.  432.4  Optional disclosures.

    Other operating characteristics and technical specifications not 
required in Sec.  432.2 of this part may be disclosed: Provided:
    (a) That any other power output is rated by the manufacturer, is 
expressed in minimum watts per channel, and such power output 
representation(s) complies with the provisions of Sec.  432.2 of this 
part; except that if a peak or other instantaneous power rating, such as 
music power or peak power, is represented under this section, the 
maximum percentage of total harmonic distortion (see Sec.  432.2(d) of 
this part) may be disclosed only at such rated output: And provided 
further,
    (b) That all disclosures or representations made under this section 
are less conspicuously, and prominently made than the disclosures 
required in Sec.  432.2 of this part; and
    (c) The rating and testing methods or standards used in determining 
such representations are disclosed, and well known and generally 
recognized by the industry at the time the representations or 
disclosures are made, are neither intended nor likely to deceive or 
confuse the consumers and are not otherwise likely to frustrate the 
purpose of this part.

    Note 1: For the purpose of paragraph (b) of this section, optional 
disclosures will not be considered less prominent if they are either 
bold faced or are more than two-thirds the height of the disclosures 
required by Sec.  432.2.

[[Page 429]]

    Note 2: Use of the asterisk in effecting any of the disclosures 
required by Sec.  432.2 and permitted by Sec.  432.4 shall not be deemed 
conspicuous disclosure.

[39 FR 15387, May 3, 1974; 39 FR 17838, May 21, 1974]



Sec.  432.5  Prohibited disclosures.

    No performance characteristics to which this part applies shall be 
represented or disclosed if they are not obtainable as represented or 
disclosed when the equipment is operated by the consumer in the usual 
and normal manner without the use of extraneous aids.



Sec.  432.6  Liability for violation.

    If the manufacturer or, in the case of foreign made products, the 
importer or domestic sales representative of a foreign manufacturer, of 
any product covered by this part furnishes the information required or 
permitted under this part, then any other seller of the product shall 
not be deemed to be in violation of Sec.  432.5 of this part due to his 
reliance upon or transmittal of the written representations of the 
manufacturer or importer if such seller has been furnished by the 
manufacturer, importer, or sales representative a written certification 
attesting to the accuracy of the representations to which this part 
applies: And provided further, That such seller is without actual 
knowledge of the violation contained in said written certification.



PART 433_PRESERVATION OF CONSUMERS' CLAIMS AND DEFENSES--Table of Contents




Sec.
433.1 Definitions.
433.2 Preservation of consumers' claims and defenses, unfair or 
          deceptive acts or practices.
433.3 Exemption of sellers taking or receiving open end consumer credit 
          contracts before November 1, 1977 from requirements of Sec.  
          433.2(a).

    Authority: 38 Stat. 717, as amended; (15 U.S.C. 41, et seq.)



Sec.  433.1  Definitions.

    (a) Person. An individual, corporation, or any other business 
organization.
    (b) Consumer. A natural person who seeks or acquires goods or 
services for personal, family, or household use.
    (c) Creditor. A person who, in the ordinary course of business, 
lends purchase money or finances the sale of goods or services to 
consumers on a deferred payment basis; Provided, such person is not 
acting, for the purposes of a particular transaction, in the capacity of 
a credit card issuer.
    (d) Purchase money loan. A cash advance which is received by a 
consumer in return for a ``Finance Charge'' within the meaning of the 
Truth in Lending Act and Regulation Z, which is applied, in whole or 
substantial part, to a purchase of goods or services from a seller who 
(1) refers consumers to the creditor or (2) is affiliated with the 
creditor by common control, contract, or business arrangement.
    (e) Financing a sale. Extending credit to a consumer in connection 
with a ``Credit Sale'' within the meaning of the Truth in Lending Act 
and Regulation Z.
    (f) Contract. Any oral or written agreement, formal or informal, 
between a creditor and a seller, which contemplates or provides for 
cooperative or concerted activity in connection with the sale of goods 
or services to consumers or the financing thereof.
    (g) Business arrangement. Any understanding, procedure, course of 
dealing, or arrangement, formal or informal, between a creditor and a 
seller, in connection with the sale of goods or services to consumers or 
the financing thereof.
    (h) Credit card issuer. A person who extends to cardholders the 
right to use a credit card in connection with purchases of goods or 
services.
    (i) Consumer credit contract. Any instrument which evidences or 
embodies a debt arising from a ``Purchase Money Loan'' transaction or a 
``financed sale'' as defined in paragraphs (d) and (e) of this section.
    (j) Seller. A person who, in the ordinary course of business, sells 
or leases goods or services to consumers.

[40 FR 53506, Nov. 18, 1975]

[[Page 430]]



Sec.  433.2  Preservation of consumers' claims and defenses, unfair 
or deceptive acts or practices.

    In connection with any sale or lease of goods or services to 
consumers, in or affecting commerce as ``commerce'' is defined in the 
Federal Trade Commission Act, it is an unfair or deceptive act or 
practice within the meaning of section 5 of that Act for a seller, 
directly or indirectly, to:
    (a) Take or receive a consumer credit contract which fails to 
contain the following provision in at least ten point, bold face, type:

                                 NOTICE

    ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS 
AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS 
OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. 
RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE 
DEBTOR HEREUNDER.


or,

    (b) Accept, as full or partial payment for such sale or lease, the 
proceeds of any purchase money loan (as purchase money loan is defined 
herein), unless any consumer credit contract made in connection with 
such purchase money loan contains the following provision in at least 
ten point, bold face, type:

                                 NOTICE

    ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS 
AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS 
OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE 
DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

[40 FR 53506, Nov. 18, 1975; 40 FR 58131, Dec. 15, 1975]



Sec.  433.3  Exemption of sellers taking or receiving open end consumer 
credit contracts before November 1, 1977 from requirements of Sec.  433.2(a).

    (a) Any seller who has taken or received an open end consumer credit 
contract before November 1, 1977, shall be exempt from the requirements 
of 16 CFR part 433 with respect to such contract provided the contract 
does not cut off consumers' claims and defenses.
    (b) Definitions. The following definitions apply to this exemption:
    (1) All pertinent definitions contained in 16 CFR 433.1.
    (2) Open end consumer credit contract: a consumer credit contract 
pursuant to which ``open end credit'' is extended.
    (3) ``Open end credit'': consumer credit extended on an account 
pursuant to a plan under which a creditor may permit an applicant to 
make purchases or make loans, from time to time, directly from the 
creditor or indirectly by use of a credit card, check, or other device, 
as the plan may provide. The term does not include negotiated advances 
under an open-end real estate mortgage or a letter of credit.
    (4) Contract which does not cut off consumers' claims and defenses: 
A consumer credit contract which does not constitute or contain a 
negotiable instrument, or contain any waiver, limitation, term, or 
condition which has the effect of limiting a consumer's right to assert 
against any holder of the contract all legally sufficient claims and 
defenses which the consumer could assert against the seller of goods or 
services purchased pursuant to the contract.

[42 FR 19490, Apr. 14, 1977, as amended at 42 FR 46510, Sept. 16, 1977]



PART 435_MAIL OR TELEPHONE ORDER MERCHANDISE--Table of Contents




Sec.
435.1 The rule.
435.2 Definitions.
435.3 Limited applicability.
435.4 Effective date of the rule.

    Authority: 15 U.S.C. 57a; 5 U.S.C. 552.

    Source: 58 FR 49121, Sept. 21, 1993, unless otherwise noted.



Sec.  435.1  The rule.

    In connection with mail or telephone order sales in or affecting 
commerce, as ``commerce'' is defined in the Federal Trade Commission 
Act, it constitutes an unfair method of competition, and an unfair or 
deceptive act or practice for a seller:

[[Page 431]]

    (a)(1) To solicit any order for the sale of merchandise to be 
ordered by the buyer through the mails or by telephone unless, at the 
time of the solicitation, the seller has a reasonable basis to expect 
that it will be able to ship any ordered merchandise to the buyer:
    (i) Within that time clearly and conspicuously stated in any such 
solicitation, or
    (ii) if no time is clearly and conspicuously stated, within thirty 
(30) days after receipt of a properly completed order from the buyer, 
Provided, however, where, at the time the merchandise is ordered the 
buyer applies to the seller for credit to pay for the merchandise in 
whole or in part, the seller shall have 50 days, rather than 30 days, to 
perform the actions required in Sec.  435.1(a)(1)(ii) of this part.
    (2) To provide any buyer with any revised shipping date, as provided 
in paragraph (b) of this section, unless, at the time any such revised 
shipping date is provided, the seller has a reasonable basis for making 
such representation regarding a definite revised shipping date.
    (3) To inform any buyer that it is unable to make any representation 
regarding the length of any delay unless
    (i) the seller has a reasonable basis for so informing the buyer and
    (ii) the seller informs the buyer of the reason or reasons for the 
delay.
    (4) In any action brought by the Federal Trade Commission, alleging 
a violation of this part, the failure of a respondent-seller to have 
records or other documentary proof establishing its use of systems and 
procedures which assure the shipment of merchandise in the ordinary 
course of business within any applicable time set forth in this part 
will create a rebuttable presumption that the seller lacked a reasonable 
basis for any expectation of shipment within said applicable time.
    (b)(1) Where a seller is unable to ship merchandise within the 
applicable time set forth in paragraph (a)(1) of this section, to fail 
to offer to the buyer, clearly and conspicuously and without prior 
demand, an option either to consent to a delay in shipping or to cancel 
the buyer's order and receive a prompt refund. Said offer shall be made 
within a reasonable time after the seller first becomes aware of its 
inability to ship within the applicable time set forth in paragraph 
(a)(1) of this section, but in no event later than said applicable time.
    (i) Any offer to the buyer of such an option shall fully inform the 
buyer regarding the buyer's right to cancel the order and to obtain a 
prompt refund and shall provide a definite revised shipping date, but 
where the seller lacks a reasonable basis for providing a definite 
revised shipping date the notice shall inform the buyer that the seller 
is unable to make any representation regarding the length of the delay.
    (ii) Where the seller has provided a definite revised shipping date 
which is thirty (30) days or less later than the applicable time set 
forth in paragraph (a)(1) of this section, the offer of said option 
shall expressly inform the buyer that, unless the seller receives, prior 
to shipment and prior to the expiration of the definite revised shipping 
date, a response from the buyer rejecting the delay and cancelling the 
order, the buyer will be deemed to have consented to a delayed shipment 
on or before the definite revised shipping date.
    (iii) Where the seller has provided a definite revised shipping date 
which is more than thirty (30) days later than the applicable time set 
forth in paragraph (a)(1) of this section or where the seller is unable 
to provide a definite revised shipping date and therefore informs the 
buyer that it is unable to make any representation regarding the length 
of the delay, the offer of said option shall also expressly inform the 
buyer that the buyer's order will automatically be deemed to have been 
cancelled unless:
    (A) The seller has shipped the merchandise within thirty (30) days 
of the applicable time set forth in paragraph (a)(1) of this section, 
and has received no cancellation prior to shipment, or
    (B) The seller has received from the buyer within thirty (30) days 
of said applicable time, a response specifically consenting to said 
shipping delay. Where the seller informs the buyer that it is unable to 
make any representation regarding the length of the delay, the buyer 
shall be expressly informed that, should the buyer consent

[[Page 432]]

to an indefinite delay, the buyer will have a continuing right to cancel 
the buyer's order at any time after the applicable time set forth in 
paragraph (a)(1) of this section by so notifying the seller prior to 
actual shipment.
    (iv) Nothing in this paragraph shall prohibit a seller who furnishes 
a definite revised shipping date pursuant to paragraph (b)(1)(i) of this 
section, from requesting, simultaneously with or at any time subsequent 
to the offer of an option pursuant to paragraph (b)(1) of this section, 
the buyer's express consent to a further unanticipated delay beyond the 
definite revised shipping date in the form of a response from the buyer 
specifically consenting to said further delay. Provided, however, That 
where the seller solicits consent to an unanticipated indefinite delay 
the solicitation shall expressly inform the buyer that, should the buyer 
so consent to an indefinite delay, the buyer shall have a continuing 
right to cancel the buyer's order at any time after the definite revised 
shipping date by so notifying the seller prior to actual shipment.
    (2) Where a seller is unable to ship merchandise on or before the 
definite revised shipping date provided under paragraph (b)(1)(i) of 
this section and consented to by the buyer pursuant to paragraph (b)(1) 
(ii) or (iii) of this section, to fail to offer to the buyer, clearly 
and conspicuously and without prior demand, a renewed option either to 
consent to a further delay or to cancel the order and to receive a 
prompt refund. Said offer shall be made within a reasonable time after 
the seller first becomes aware of its inability to ship before the said 
definite revised date, but in no event later than the expiration of the 
definite revised shipping date: Provided, however, That where the seller 
previously has obtained the buyer's express consent to an unanticipated 
delay until a specific date beyond the definite revised shipping date, 
pursuant to paragraph (b)(1)(iv) of this section or to a further delay 
until a specific date beyond the definite revised shipping date pursuant 
to paragraph (b)(2) of this section, that date to which the buyer has 
expressly consented shall supersede the definite revised shipping date 
for purposes of paragraph (b)(2) of this section.
    (i) Any offer to the buyer of said renewed option shall provide the 
buyer with a new definite revised shipping date, but where the seller 
lacks a reasonable basis for providing a new definite revised shipping 
date, the notice shall inform the buyer that the seller is unable to 
make any representation regarding the length of the further delay.
    (ii) The offer of a renewed option shall expressly inform the buyer 
that, unless the seller receives, prior to the expiration of the old 
definite revised shipping date or any date superseding the old definite 
revised shipping date, notification from the buyer specifically 
consenting to the further delay, the buyer will be deemed to have 
rejected any further delay, and to have cancelled the order if the 
seller is in fact unable to ship prior to the expiration of the old 
definite revised shipping date or any date superseding the old definite 
revised shipping date: Provided, however, That where the seller offers 
the buyer the option to consent to an indefinite delay the offer shall 
expressly inform the buyer that, should the buyer so consent to an 
indefinite delay, the buyer shall have a continuing right to cancel the 
buyer's order at any time after the old definite revised shipping date 
or any date superseding the old definite revised shipping date.
    (iii) Paragraph (b)(2) of this section shall not apply to any 
situation where a seller, pursuant to the provisions of paragraph 
(b)(1)(iv) of this section, has previously obtained consent from the 
buyer to an indefinite extension beyond the first revised shipping date.
    (3) Wherever a buyer has the right to exercise any option under this 
part or to cancel an order by so notifying the seller prior to shipment, 
to fail to furnish the buyer with adequate means, at the seller's 
expense, to exercise such option or to notify the seller regarding 
cancellation.
    Nothing in paragraph (b) of this section shall prevent a seller, 
where it is unable to make shipment within the time set forth in 
paragraph (a)(1) of this section or within a delay period consented to 
by the buyer, from deciding to consider the order cancelled and

[[Page 433]]

providing the buyer with notice of said decision within a reasonable 
time after it becomes aware of said inability to ship, together with a 
prompt refund.
    (c) To fail to deem an order cancelled and to make a prompt refund 
to the buyer whenever:
    (1) The seller receives, prior to the time of shipment, notification 
from the buyer cancelling the order pursuant to any option, renewed 
option or continuing option under this part;
    (2) The seller has, pursuant to paragraph (b)(1)(iii) of this 
section, provided the buyer with a definite revised shipping date which 
is more than thirty (30) days later than the applicable time set forth 
in paragraph (a)(1) of this section or has notified the buyer that it is 
unable to make any representation regarding the length of the delay and 
the seller
    (i) Has not shipped the merchandise within thirty (30) days of the 
applicable time set forth in paragraph (a)(1) of this section, and
    (ii) Has not received the buyer's express consent to said shipping 
delay within said thirty (30) days;
    (3) The seller is unable to ship within the applicable time set 
forth in paragraph (b)(2) of this section, and has not received, within 
the said applicable time, the buyer's consent to and further delay;
    (4) The seller has notified the buyer of its inability to make 
shipment and has indicated its decision not to ship the merchandise;
    (5) The seller fails to offer the option prescribed in paragraph 
(b)(1) of this section and has not shipped the merchandise within the 
applicable time set forth in paragraph (a)(1) of this section.
    (d) In any action brought by the Federal Trade Commission, alleging 
a violation of this part, the failure of a respondent-seller to have 
records or other documentary proof establishing its use of systems and 
procedures which assure compliance, in the ordinary course of business, 
with any requirement of paragraphs (b) or (c) of this section will 
create a rebuttable presumption that the seller failed to comply with 
said requirement.



Sec.  435.2  Definitions.

    For purposes of this part:
    (a) Mail or telephone order sales shall mean sales in which the 
buyer has ordered merchandise from the seller by mail or telephone, 
regardless of the method of payment or the method used to solicit the 
order.
    (b) Telephone refers to any direct or indirect use of the telephone 
to order merchandise, regardless of whether the telephone is activated 
by, or the language used is that of human beings, machines, or both.
    (c) Shipment shall mean the act by which the merchandise is 
physically placed in the possession of the carrier.
    (d) Receipt of a properly completed order shall mean, where the 
buyer tenders full or partial payment in the proper amount in the form 
of cash, check, money order, or authorization from the buyer to charge 
an existing charge account, the time at which the seller receives both 
said payment and an order from the buyer containing all of the 
information needed by the seller to process and ship the order. 
Provided, however, That where the seller receives notice that the check 
or money order tendered by the buyer has been dishonored or that the 
buyer does not qualify for a credit sale, receipt of a properly 
completed order shall mean the time at which:
    (i) The seller receives notice that a check or money order for the 
proper amount tendered by the buyer has been honored,
    (ii) The buyer tenders cash in the proper amount, or
    (iii) The seller receives notice that the buyer qualifies for a 
credit sale.
    (e) Refund shall mean:
    (1) Where the buyer tendered full payment for the unshipped 
merchandise in the form of cash, check or money order, a return of the 
amount tendered in the form of cash, check or money order;
    (2) Where there is a credit sale:
    (i) And the seller is a creditor, a copy of a credit memorandum or 
the like or an account statement reflecting the removal or absence of 
any remaining charge incurred as a result of the sale from the buyer's 
account;
    (ii) And a third party is the creditor, a copy of an appropriate 
credit memorandum or the like to the third party creditor which will 
remove the charge

[[Page 434]]

from the buyer's account or a statement from the seller acknowledging 
the cancellation of the order and representing that it has not taken any 
action regarding the order which will result in a charge to the buyer's 
account with the third party;
    (iii) And the buyer tendered partial payment for the unshipped 
merchandise in the form of cash, check or money order, a return of the 
amount tendered in the form of cash, check or money order.
    (f) Prompt refund shall mean:
    (1) Where a refund is made pursuant to paragraph (e) (1) or (2)(iii) 
of this section, a refund sent to the buyer by first class mail within 
seven (7) working days of the date on which the buyer's right to refund 
vests under the provisions of this part;
    (2) Where a refund is made pursuant to paragraph (e)(2) (i) or (ii) 
of this section, a refund sent to the buyer by first class mail within 
one (1) billing cycle from the date on which the buyer's right to refund 
vests under the provisions of this part.
    (g) The time of solicitation of an order shall mean that time when 
the seller has:
    (1) Mailed or otherwise disseminated the solicitation to a 
prospective purchaser,
    (2) Made arrangements for an advertisement containing the 
solicitation to appear in a newspaper, magazine or the like or on radio 
or television which cannot be changed or cancelled without incurring 
substantial expense, or
    (3) Made arrangements for the printing of a catalog, brochure or the 
like which cannot be changed without incurring substantial expense, in 
which the solicitation in question forms an insubstantial part.

[58 FR 49121, Sept. 21, 1993, as amended at 60 FR 56950, Nov. 13, 1995]



Sec.  435.3  Limited applicability.

    (a) This part shall not apply to:
    (1) Subscriptions, such as magazine sales, ordered for serial 
delivery, after the initial shipment is made in compliance with this 
part.
    (2) Orders of seeds and growing plants.
    (3) Orders made on a collect-on-delivery (C.O.D.) basis.
    (4) Transactions governed by the Federal Trade Commission's Trade 
Regulation Rule entitled ``Use of Negative Option Plans by Sellers in 
Commerce,'' 16 CFR part 425.
    (b) By taking action in this area:
    (1) The Federal Trade Commission does not intend to preempt action 
in the same area, which is not inconsistent with this part, by any 
State, municipal, or other local government. This part does not annul or 
diminish any rights or remedies provided to consumers by any State law, 
municipal ordinance, or other local regulation, insofar as those rights 
or remedies are equal to or greater than those provided by this part. In 
addition, this part does not supersede those provisions of any State 
law, municipal ordinance, or other local regulation which impose 
obligations or liabilities upon sellers, when sellers subject to this 
part are not in compliance therewith.
    (2) This part does supersede those provisions of any State law, 
municipal ordinance, or other local regulation which are inconsistent 
with this part to the extent that those provisions do not provide a 
buyer with rights which are equal to or greater than those rights 
granted a buyer by this part. This part also supersedes those provisions 
of any State law, municipal ordinance, or other local regulation 
requiring that a buyer be notified of a right which is the same as a 
right provided by this part but requiring that a buyer be given notice 
of this right in a language, form, or manner which is different in any 
way from that required by this part. In those instances where any State 
law, municipal ordinance, or other local regulation contains provisions, 
some but not all of which are partially or completely superseded by this 
part, the provisions or portions of those provisions which have not been 
superseded retain their full force and effect.
    (c) If any provision of this part, or its application to any person, 
partnership, corporation, act or practice is held invalid, the remainder 
of this part or the application of the provision to any other person, 
partnership, corporation, act or practice shall not be affected thereby.

[[Page 435]]



Sec.  435.4  Effective date of the rule.

    The original rule, which became effective 100 days after its 
promulgation on October 22, 1975, remains in effect. The amended rule, 
as set forth in this part, becomes effective March 1, 1994.



PART 436_DISCLOSURE REQUIREMENTS AND PROHIBITIONS CONCERNING FRANCHISING 
AND BUSINESS OPPORTUNITY VENTURES--Table of Contents




Sec.
436.1 The Rule.
436.2 Definitions.
436.3 Severability.

    Authority: 38 Stat. 717, as amended, 15 U.S.C. 41-58.

    Source: 43 FR 59614, Dec. 21, 1978, unless otherwise noted.



Sec.  436.1  The Rule.

    In connection with the advertising, offering, licensing, 
contracting, sale, or other promotion in or affecting commerce, as 
``commerce'' is defined in the Federal Trade Commission Act, of any 
franchise, or any relationship which is represented either orally or in 
writing to be a franchise, it is an unfair or deceptive act or practice 
within the meaning of section 5 of that Act for any franchisor or 
franchise broker:
    (a) To fail to furnish any prospective franchisee with the following 
information accurately, clearly, and concisely stated, in a legible, 
written document at the earlier of the ``time for making of 
disclosures'' or the first ``personal meeting'':
    (1)(i) The official name and address and principal place of business 
of the franchisor, and of the parent firm or holding company of the 
franchisor, if any;
    (ii) The name under which the franchisor is doing or intends to do 
business; and
    (iii) The trademarks, trade names, service marks, advertising or 
other commercial symbols (hereinafter collectively referred to as 
``marks'') which identify the goods, commodities, or services to be 
offered, sold, or distributed by the prospective franchisee, or under 
which the prospective franchisee will be operating.
    (2) The business experience during the past 5 years, stated 
individually, of each of the franchisor's current directors and 
executive officers (including, and hereinafter to include, the chief 
executive and chief operating officer, financial, franchise marketing, 
training and service officers). With regard to each person listed, those 
persons' principal occupations and employers must be included.
    (3) The business experience of the franchisor and the franchisor's 
parent firm (if any), including the length of time each: (i) Has 
conducted a business of the type to be operated by the franchisee; (ii) 
has offered or sold a franchise for such business; (iii) has conducted a 
business or offered or sold a franchise for a business (A) operating 
under a name using any mark set forth under paragraph (a)(1)(iii) of 
this section, or (B) involving the sale, offering, or distribution of 
goods, commodities, or services which are identified by any mark set 
forth under paragraph (a)(1)(iii) of this section; and (iv) has offered 
for sale or sold franchises in other lines of business, together with a 
description of such other lines of business.
    (4) A statement disclosing who, if any, of the persons listed in 
paragraphs (a) (2) and (3) of this section:
    (i) Has, at any time during the previous seven fiscal years, been 
convicted of a felony or pleaded nolo contendere to a felony charge if 
the felony involved fraud (including violation of any franchise law, or 
unfair or deceptive practices law), embezzlement, fraudulent conversion, 
misappropriation of property, or restraint of trade;
    (ii) Has, at any time during the previous seven fiscal years, been 
held liable in a civil action resulting in a final judgment or has 
settled out of court any civil action or is a party to any civil action 
(A) involving allegations of fraud (including violation of any franchise 
law, or unfair or deceptive practices law), embezzlement, fraudulent 
conversion, misappropriation of property, or restraint of trade, or (B) 
which was brought by a present or former franchisee or franchisees and 
which involves or involved the franchise relationship; Provided, 
however, That only material individual civil actions need

[[Page 436]]

be so listed pursuant to paragraph (4)(ii) of this section, including 
any group of civil actions which, irrespective of the materiality of any 
single such action, in the aggregate is material;
    (iii) Is subject to any currently effective State or Federal agency 
or court injunctive or restrictive order, or is a party to a proceeding 
currently pending in which such order is sought, relating to or 
affecting franchise activities or the franchisor-franchisee 
relationship, or involving fraud (including violation of any franchise 
law, or unfair or deceptive practices law), embezzlement, fraudulent 
conversion, misappropriation of property, or restraint of trade.

Such statement shall set forth the identity and location of the court or 
agency; the date of conviction, judgment, or decision; the penalty 
imposed; the damages assessed; the terms of settlement or the terms of 
the order; and the date, nature, and issuer of each such order or 
ruling. A franchisor may include a summary opinion of counsel as to any 
pending litigation, but only if counsel's consent to the use of such 
opinion is included in the disclosure statement.
    (5) A statement disclosing who, if any, of the persons listed in 
paragraphs (a) (2) and (3) of this section at any time during the 
previous 7 fiscal years has:
    (i) Filed in bankruptcy;
    (ii) Been adjudged bankrupt;
    (iii) Been reorganized due to insolvency; or
    (iv) Been a principal, director, executive officer, or partner of 
any other person that has so filed or was so adjudged or reorganized, 
during or within 1 year after the period that such person held such 
position in such other person. If so, the name and location of the 
person having so filed, or having been so adjudged or reorganized, the 
date thereof, and any other material facts relating thereto, shall be 
set forth.
    (6) A factual description of the franchise offered to be sold by the 
franchisor.
    (7) A statement of the total funds which must be paid by the 
franchisee to the franchisor or to a person affiliated with the 
franchisor, or which the franchisor or such affiliated person imposes or 
collects in whole or in part on behalf of a third party, in order to 
obtain or commence the franchise operation, such as initial franchise 
fees, deposits, downpayments, prepaid rent, and equipment and inventory 
purchases. If all or part of these fees or deposits are returnable under 
certain conditions, these conditions shall be set forth; and if not 
returnable, such fact shall be disclosed.
    (8) A statement describing any recurring funds required to be paid, 
in connection with carrying on the franchise business, by the franchisee 
to the franchisor or to a person affiliated with the franchisor, or 
which the franchisor or such affiliated person imposes or collects in 
whole or in part on behalf of a third party, including, but not limited 
to, royalty, lease, advertising, training, and sign rental fees, and 
equipment or inventory purchases.
    (9) A statement setting forth the name of each person (including the 
franchisor) the franchisee is directly or indirectly required or advised 
to do business with by the franchisor, where such persons are affiliated 
with the franchisor.
    (10) A statement describing any real estate, services, supplies, 
products, inventories, signs, fixtures, or equipment relating to the 
establishment or the operation of the franchise business which the 
franchisee is directly or indirectly required by the franchisor to 
purchase, lease or rent; and if such purchases, leases or rentals must 
be made from specific persons (including the franchisor), a list of the 
names and addresses of each such person. Such list may be made in a 
separate document delivered to the prospective franchisee with the 
prospectus if the existence of such separate document is disclosed in 
the prospectus.
    (11) A description of the basis for calculating, and, if such 
information is readily available, the actual amount of, any revenue or 
other consideration to be received by the franchisor or persons 
affiliated with the franchisor from suppliers to the prospective 
franchisee in consideration for goods or services which the franchisor 
requires or advises the franchisee to obtain from such suppliers.

[[Page 437]]

    (12)(i) A statement of all the material terms and conditions of any 
financing arrangement offered directly or indirectly by the franchisor, 
or any person affiliated with the franchisor, to the prospective 
franchisee; and
    (ii) A description of the terms by which any payment is to be 
received by the franchisor from (A) any person offering financing to a 
prospective franchisee; and (B) any person arranging for financing for a 
prospective franchisee.
    (13) A statement describing the material facts of whether, by the 
terms of the franchise agreement or other device or practice, the 
franchisee is:
    (i) Limited in the goods or services he or she may offer for sale;
    (ii) Limited in the customers to whom he or she may sell such goods 
or services;
    (iii) Limited in the geographic area in which he or she may offer 
for sale or sell goods or services; or
    (iv) Granted territorial protection by the franchisor, by which, 
with respect to a territory or area, (A) the franchisor will not 
establish another, or more than any fixed number of, franchises or 
company-owned outlets, either operating under, or selling, offering, or 
distributing goods, commodities or services, identified by any mark set 
forth under paragraph (a)(1)(iii) of this section; or (B) the franchisor 
or its parent will not establish other franchises or company-owned 
outlets selling or leasing the same or similar products or services 
under a different trade name, trademark, service mark, advertising or 
other commercial symbol.
    (14) A statement of the extent to which the franchisor requires the 
franchisee (or, if the franchisee is a corporation, any person 
affiliated with the franchisee) to participate personally in the direct 
operation of the franchise.
    (15) A statement disclosing, with respect to the franchise agreement 
and any related agreements:
    (i) The term (i.e., duration of arrangement), if any, of such 
agreement, and whether such term is or may be affected by any agreement 
(including leases or subleases) other than the one from which such term 
arises;
    (ii) The conditions under which the franchisee may renew or extend;
    (iii) The conditions under which the franchisor may refuse to renew 
or extend;
    (iv) The conditions under which the franchisee may terminate;
    (v) The conditions under which the franchisor may terminate;
    (vi) The obligations (including lease or sublease obligations) of 
the franchisee after termination of the franchise by the franchisor, and 
the obligations of the franchisee (including lease or sublease 
obligations) after termination of the franchise by the franchisee and 
after the expiration of the franchise;
    (vii) The franchisee's interest upon termination of the franchise, 
or upon refusal to renew or extend the franchise, whether by the 
franchisor or by the franchisee;
    (viii) The conditions under which the franchisor may repurchase, 
whether by right of first refusal or at the option of the franchisor 
(and if the franchisor has the option to repurchase the franchise, 
whether there will be an independent appraisal of the franchise, whether 
the repurchase price will be determined by a predetermined formula and 
whether there will be a recognition of goodwill or other intangibles 
associated therewith in the repurchase price to be given the 
franchisee);
    (ix) The conditions under which the franchisee may sell or assign 
all or any interest in the ownership of the franchise, or of the assets 
of the franchise business;
    (x) The conditions under which the franchisor may sell or assign, in 
whole or in part, its interest under such agreements;
    (xi) The conditions under which the franchisee may modify;
    (xii) The conditions under which the franchisor may modify;
    (xiii) The rights of the franchisee's heirs or personal 
representative upon the death or incapacity of the franchisee; and
    (xiv) The provisions of any covenant not to compete.
    (16) A statement disclosing, with respect to the franchisor and as 
to the particular named business being offered:

[[Page 438]]

    (i) The total number of franchises operating at the end of the 
preceding fiscal year;
    (ii) The total number of company-owned outlets operating at the end 
of the preceding fiscal year;
    (iii) The names, addresses, and telephone numbers of (A) The 10 
franchised outlets of the named franchise business nearest the 
prospective franchisee's intended location; or (B) all franchisees of 
the franchisor, or (C) all franchisees of the franchisor in the State in 
which the prospective franchisee lives or where the proposed franchise 
is to be located, Provided, however, That there are more than 10 such 
franchisees. If the number of franchisees to be disclosed pursuant to 
paragraph (a)(16)(iii) (B) or (C) of this section exceeds 50, such 
listing may be made in a separate document delivered to the prospective 
franchisee with the prospectus if the existence of such separate 
document is disclosed in the prospectus;
    (iv) The number of franchises voluntarily terminated or not renewed 
by franchisees within, or at the conclusion of, the term of the 
franchise agreement, during the preceding fiscal year;
    (v) The number of franchises reacquired by purchase by the 
franchisor during the term of the franchise agreement, and upon the 
conclusion of the term of the franchise agreement, during the preceding 
fiscal year;
    (vi) The number of franchises otherwise reacquired by the franchisor 
during the term of the franchise agreement, and upon the conclusion of 
the term of the franchise agreement, during the preceding fiscal year;
    (vii) The number of franchises for which the franchisor refused 
renewal of the franchise agreement or other agreements relating to the 
franchise during the preceding fiscal year; and
    (viii) The number of franchises that were canceled or terminated by 
the franchisor during the term of the franchise agreement, and upon 
conclusion of the term of the franchise agreement, during the preceding 
fiscal year.

With respect to the disclosures required by paragraphs (a)(16) (v), 
(vi), (vii), and (viii) of this section, the disclosure statement shall 
also include a general categorization of the reasons for such 
reacquisitions, refusals to renew or terminations, and the number 
falling within each such category, including but not limited to the 
following: failure to comply with quality control standards, failure to 
make sufficient sales, and other breaches of contract.
    (17)(i) If site selection or approval thereof by the franchisor is 
involved in the franchise relationship, a statement disclosing the range 
of time that has elapsed between signing of franchise agreements or 
other agreements relating to the franchise and site selection, for 
agreements entered into during the preceding fiscal year; and
    (ii) If operating franchise outlets are to be provided by the 
franchisor, a statement disclosing the range of time that has elapsed 
between the signing of franchise agreements or other agreements relating 
to the franchise and the commencement of the franchisee's business, for 
agreements entered into during the preceding fiscal year.

With respect to the disclosures required by paragraphs (a)(17) (i) and 
(ii) of this section, a franchisor may at its option also provide a 
distribution chart using meaningful classifications with respect to such 
ranges of time.
    (18) If the franchisor offers an initial training program or informs 
the prospective franchisee that it intends to provide such person with 
initial training, a statement disclosing:
    (i) The type and nature of such training;
    (ii) The minimum amount, if any, of training that will be provided 
to a franchisee; and
    (iii) The cost, if any, to be borne by the franchisee for the 
training to be provided, or for obtaining such training.
    (19) If the name of a public figure is used in connection with a 
recommendation to purchase a franchise, or as a part of the name of the 
franchise operation, or if the public figure is stated to be involved 
with the management of the franchisor, a statement disclosing:
    (i) The nature and extent of the public figure's involvement and 
obligations to the franchisor, including but not limited to the 
promotional assistance the public figure will provide to the franchisor 
and to the franchisee;

[[Page 439]]

    (ii) The total investment of the public figure in the franchise 
operation; and
    (iii) The amount of any fee or fees the franchisee will be obligated 
to pay for such involvement or assistance provided by the public figure.
    (20)(i) A balance sheet (statement of financial position) for the 
franchisor for the most recent fiscal year, and an income statement 
(statement of results of operations) and statement of changes in 
financial position for the franchisor for the most recent 3 fiscal 
years. Such statements are required to have been examined in accordance 
with generally accepted auditing standards by an independent certified 
or licensed public accountant.
    Provided, however, That where a franchisor is a subsidiary of 
another corporation which is permitted under generally accepted 
accounting principles to prepare financial statements on a consolidated 
or combined statement basis, the above information may be submitted for 
the parent if (A) the corresponding unaudited financial statements of 
the franchisor are also provided, and (B) the parent absolutely and 
irrevocably has agreed to guarantee all obligations of the subsidiary;
    (ii) Unaudited statements shall be used only to the extent that 
audited statements have not been made, and provided that such statements 
are accompanied by a clear and conspicuous disclosure that they are 
unaudited. Statements shall be prepared on an audited basis as soon as 
practicable, but, at a minimum, financial statements for the first full 
fiscal year following the date on which the franchisor must first comply 
with this part shall contain a balance sheet opinion prepared by an 
independent certified or licensed public accountant, and financial 
statements for the following fiscal year shall be fully audited.
    (21) All of the foregoing information in paragraphs (a) (1) through 
(20) of this section shall be contained in a single disclosure statement 
or prospectus, which shall not contain any materials or information 
other than that required by this part or by State law not preempted by 
this part. This does not preclude franchisors or franchise brokers from 
giving other nondeceptive information orally, visually, or in separate 
literature so long as such information is not contradictory to the 
information in the disclosure statement required by paragraph (a) of 
this section. This disclosure statement shall carry a cover sheet 
distinctively and conspicuously showing the name of the franchisor, the 
date of issuance of the disclosure statement, and the following notice 
imprinted thereon in upper and lower case bold-face type of not less 
than 12 point size:

   Information for Prospective Franchisees Required by Federal Trade 
                               Commission

                                * * * * *

    To protect you, we've required your franchisor to give you this 
information. We haven't checked it, and don't know if it's correct. It 
should help you make up your mind. Study it carefully. While it includes 
some information about your contract, don't rely on it alone to 
understand your contract. Read all of your contract carefully. Buying a 
franchise is a complicated investment. Take your time to decide. If 
possible, show your contract and this information to an advisor, like a 
lawyer or an accountant. If you find anything you think may be wrong or 
anything important that's been left out, you should let us know about 
it. It may be against the law.
    There may also be laws on franchising in your state. Ask your state 
agencies about them.

                                              Federal Trade Commission, 
                                                        Washington, D.C.


Provided, That the obligation to furnish such disclosure statement shall 
be deemed to have been met for both the franchisor and the franchise 
broker if either such party furnishes the prospective franchisee with 
such disclosure statement.
    (22) All information contained in the disclosure statement shall be 
current as of the close of the franchisor's most recent fiscal year. 
After the close of each fiscal year, the franchisor shall be given a 
period not exceeding 90 days to prepare a revised disclosure statement 
and, following such 90 days, may distribute only the revised prospectus 
and no other. The franchisor shall, within a reasonable time after the 
close of each quarter of the fiscal year, prepare revisions to be 
attached to the disclosure statement to reflect any material change in 
the franchisor or relating to

[[Page 440]]

the franchise business of the franchisor, about which the franchisor or 
franchise broker, or any agent, representative, or employee thereof, 
knows or should know. Each prospective franchisee shall have in his or 
her possession, at the ``time for making of disclosures,'' the 
disclosure statement and quarterly revision for the period most recent 
to the ``time for making of disclosures'' and available at that time. 
Information which is required to be audited pursuant to paragraph 
(a)(20) of this section is not required to be audited for quarterly 
revisions, Provided, however, That the unaudited information be 
accompanied by a statement in immediate conjunction therewith that 
clearly and conspicuously discloses that such information has not been 
audited.
    (23) A table of contents shall be included within the disclosure 
statement.
    (24) The disclosure statement shall include a comment which either 
positively or negatively responds to each disclosure item required to be 
in the disclosure statement, by use of a statement which fully 
incorporates the information required by the item. Each disclosure item 
therein must be preceded by the appropriate heading, as set forth in 
Note 3 of this part.
    (b) To make any oral, written, or visual representation to a 
prospective franchisee which states a specific level of potential sales, 
income, gross or net profit for that prospective franchisee, or which 
states other facts which suggest such a specific level, unless:
    (1) At the time such representation is made, such representation is 
relevant to the geographic market in which the franchise is to be 
located;
    (2) At the time such representation is made, a reasonable basis 
exists for such representation and the franchisor has in its possession 
material which constitutes a reasonable basis for such representation, 
and such material is made available to any prospective franchisee and to 
the Commission or its staff upon reasonable demand.
    Provided, further, That in immediate conjunction with such 
representation, the franchisor shall disclose in a clear and conspicuous 
manner that such material is available to the prospective franchisee; 
and Provided, however, That no provision within paragraph (b) of this 
section shall be construed as requiring the disclosure to any 
prospective franchisee of the identity of any specific franchisee or of 
information reasonably likely to lead to the disclosure of such person's 
identity; and Provided, further, That no additional representation as to 
a prospective franchisee's potential sales, income, or profits may be 
made later than the ``time for making of disclosures'';
    (3) Such representation is set forth in detail along with the 
material bases and assumptions therefor in a single legible written 
document whose text accurately, clearly and concisely discloses such 
information, and none other than that provided for by this part or by 
State law not preempted by this part. Each prospective franchisee to 
whom the representation is made shall be furnished with such document no 
later than the ``time for making of disclosures''; Provided, however, 
That if the representation is made at or prior to a ``personal meeting'' 
and such meeting occurs before the ``time for making of disclosures'', 
the document shall be furnished to the prospective franchisee to whom 
the representation is made at that ``personal meeting'';
    (4) The following statement is clearly and conspicuously disclosed 
in the document described by paragraph (b)(3) of this section in 
immediate conjunction with such representation and in not less than 
twelve point upper and lower-case boldface type:

                                 CAUTION

    These figures are only estimates of what we think you may earn. 
There is no assurance you'll do as well. If you rely upon our figures, 
you must accept the risk of not doing as well.

    (5) The following information is clearly and conspicuously disclosed 
in the document described by paragraph (b)(3) of this section in 
immediate conjunction with such representation:
    (i) The number and percentage of outlets of the named franchise 
business which are located in the geographic markets that form the basis 
for any such representation and which are known to the franchisor or 
franchise broker to have earned or made at least

[[Page 441]]

the same sales, income, or profits during a period of corresponding 
length in the immediate past as those potential sales, income, or 
profits represented; and
    (ii) The beginning and ending dates for the corresponding time 
period referred to by paragraph (b)(5)(i) of this section, Provided, 
however, That any franchisor without prior franchising experience as to 
the named franchise business so indicate such lack of experience in the 
document described in paragraph (b)(3) of this section.

Except, That representations of the sales, income or profits of existing 
franchise outlets need not comply with paragraph (b) of this section.
    (c) To make any oral, written or visual representation to a 
prospective franchisee which states a specific level of sales, income, 
gross or net profits of existing outlets (whether franchised or company-
owned) of the named franchise business, or which states other facts 
which suggest such a specific level, unless:
    (1) At the time such representation is made, such representation is 
relevant to the geographic market in which the franchise is to be 
located;
    (2) At the time such representation is made, a reasonable basis 
exists for such representation and the franchisor has in its possession 
material which constitutes a reasonable basis for such representation, 
and such material is made available to any prospective franchisee and to 
the Commission or its staff upon reasonable demand, Provided, however, 
That in immediate conjunction with such representation, the franchisor 
discloses in a clear and conspicuous manner that such material is 
available to the prospective franchisee; and Provided, further, That no 
provision within paragraph (c) of this section shall be construed as 
requiring the disclosure to any prospective franchisee of the identity 
of any specific franchisee or of information reasonably likely to lead 
to the disclosure of such person's identity; and Provided, further, That 
no additional representation as to the sales, income, or gross or net 
profits of existing outlets (whether franchised or company-owned) of the 
named franchise business may be made later than the ``time for making of 
disclosures'';
    (3) Such representation is set forth in detail along with the 
material bases and assumptions therefor in a single legible written 
document which accurately, clearly and concisely discloses such 
information, and none other than that provided for by this part or by 
State law not preempted by this part. Each prospective franchisee to 
whom the representation is made shall be furnished with such document no 
later than the ``time for making of disclosures'', Provided, however, 
That if the representation is made at or prior to a ``personal meeting'' 
and such meeting occurs before the ``time for making of disclosures,'' 
the document shall be furnished to the prospective franchisee to whom 
the representation is made at that ``personal meeting'';
    (4) The underlying data on which the representation is based have 
been prepared in accordance with generally accepted accounting 
principles;
    (5) The following statement is clearly and conspicuously disclosed 
in the document described by paragraph (c)(3) of this section in 
immediate conjunction with such representation, and in not less than 
twelve point upper and lower case boldface type:

                                 CAUTION

    Some outlets have [sold] [earned] this amount. There is no assurance 
you'll do as well. If you rely upon our figures, you must accept the 
risk of not doing as well.

    (6) The following information is clearly and conspicuously disclosed 
in the document described by paragraph (c)(3) of this section in 
immediate conjunction with such representation:
    (i) The number and percentage of outlets of the named franchise 
business which are located in the geographic markets that form the basis 
for any such representation and which are known to the franchisor or 
franchise broker to have earned or made at least the same sales, income, 
or profits during a period of corresponding length in the immediate past 
as those sales, income, or profits represented; and
    (ii) The beginning and ending dates for the corresponding time 
period referred to by paragraph (c)(6)(i) of this section, Provided, 
however, That any franchisor without prior franchising experience as to 
the named franchise

[[Page 442]]

business so indicate such lack of experience in the document described 
in paragraph (c)(3) of this section.
    (d) To fail to provide the following information within the 
document(s) required by paragraphs (b)(3) and (c)(3) of this section 
whenever any representation is made to a prospective franchisee 
regarding its potential sales, income, or profits, or the sales, income, 
gross or net profits of existing outlets (whether franchised or company-
owned) of the named franchise business:
    (1) A cover sheet distinctively and conspicuously showing the name 
of the franchisor, the date of issuance of the document and the 
following notice imprinted thereon in upper and lower case boldface type 
of not less than twelve point size:

Information for Prospective Franchisees About Franchise [Sales] [Income] 
           [Profit] Required by the Federal Trade Commission.

    To protect you, we've required the franchisor to give you this 
information. We haven't checked it and don't know if it's correct. Study 
these facts and figures carefully. If possible, show them to someone who 
can advise you, like a lawyer or an accountant. Then take your time and 
think it over.
    If you find anything you think may be wrong or anything important 
that's been left out, let us know about it. It may be against the law.
    There may also be laws on franchising in your State. Ask your State 
agencies about them.
                                              Federal Trade Commission, 
                                                        Washington, D.C.

    (2) A table of contents.

    Provided, however, That each prospective franchisee to whom the 
representation is made shall be notified at the ``time for making of 
disclosures'' of any material change (about which the franchisor, 
franchise broker, or any of the agents, representatives, or employees 
thereof, knows or should know) in the information contained in the 
document(s) described by paragraphs (b)(3) and (c)(3) of this section.
    (e) To make any oral, written, or visual representation for general 
dissemination (not otherwise covered by paragraph (b) or (c) of this 
section) which states a specific level of sales, income, gross or net 
profits, either actual or potential, of existing or prospective outlets 
(whether franchised or company-owned) of the named franchise business or 
which states other facts which suggest such a specific level, unless:
    (1) At the time such representation is made, a reasonable basis 
exists for such representation and the franchisor has in its possession 
material which constitutes a reasonable basis for such representation 
and which is made available to the Commission or its staff upon 
reasonable demand;
    (2) The underlying data on which each representation of sales, 
income or profit for existing outlets is based have been prepared in 
accordance with generally accepted accounting principles;
    (3) In immediate conjunction with such representation, there shall 
be clearly and conspicuously disclosed the number and percentage of 
outlets of the named franchise business which the franchisor or the 
franchise broker knows to have earned or made at least the same sales, 
income, or profits during a period of corresponding length in the 
immediate past as those sales, income, or profits represented, and the 
beginning and ending dates for said time period;
    (4) In immediate conjuction with each such representation of 
potential sales, income or profits, the following statement shall be 
clearly and conspicuously disclosed:

                                 CAUTION

    These figures are only estimates; there is no assurance you'll do as 
well. If you rely upon our figures, you must accept the risk of not 
doing as well.

    Provided, however, That if such representation is not based on 
actual experience of existing outlets of the named franchise business, 
that fact also should be disclosed;
    (5) No later than the earlier of the first ``personal meeting'' or 
the ``time for making of disclosures,'' each prospective franchisee 
shall be given a single, legible written document which accurately, 
clearly and concisely sets forth the following information and materials 
(and none other than that provided for by this part or by State law not 
preempted by this part):

[[Page 443]]

    (i) The representation, set forth in detail along with the material 
bases and assumptions therefor;
    (ii) The number and percentage of outlets of the named franchise 
business which the franchisor or the franchise broker knows to have 
earned or made at least the same sales, income or profits during a 
period of corresponding length in the immediate past as those sales, 
income, or profits represented, and the beginning and ending dates for 
said time period;
    (iii) With respect to each such representation of sales, income, or 
profits of existing outlets, the following statement shall be clearly 
and conspicuously disclosed in immediate conjunction therewith, printed 
in not less than 12 point upper and lower case boldface type:

                                 CAUTION

    Some outlets have [sold] [earned] this amount. There is no assurance 
you'll do as well. If you rely upon our figures, you must accept the 
risk of not doing as well.

    (iv) With respect to each such representation of potential sales, 
income, or profits, the following statement shall be clearly and 
conspicuously disclosed in immediate conjunction therewith, printed in 
not less than 12 point upper and lower case boldface type:

                                 CAUTION

    These figures are only estimates. There is no assurance that you'll 
do as well. If you rely upon our figures, you must accept the risk of 
not doing as well.

    (v) If applicable, a statement clearly and conspicuously disclosing 
that the franchisor lacks prior franchising experience as to the named 
franchise business;
    (vi) If applicable, a statement clearly and conspicuously disclosing 
that the franchisor has not been in business long enough to have actual 
business data;
    (vii) A cover sheet, distinctively and conspicuously showing the 
name of the franchisor, the date of issuance of the document, and the 
following notice printed thereon in not less than 12 point upper and 
lower case boldface type:

Information for Prospective Franchisees About Franchise [Sales] [Income] 
            [Profit] Required by the Federal Trade Commission

    To protect you, we've required the franchisor to give you this 
information. We haven't checked it and don't know if it's correct. Study 
these facts and figures carefully. If possible, show them to someone who 
can advise you, like a lawyer or an accountant. If you find anything you 
think may be wrong or anything important that's been left out, let us 
know about it. It may be against the law. There may also be laws about 
franchising in your State. Ask your State agencies about them.

                                             Federal Trade Commisssion, 
                                                        Washington, D.C.

    (viii) A table of contents;
    (6) Each prospective franchisee shall be notified at the ``time for 
making of disclosures'' of any material changes that have occurred in 
the information contained in this document.
    (f) To make any claim or representation which is contradictory to 
the information required to be disclosed by this part.
    (g) To fail to furnish the prospective franchisee with a copy of the 
franchisor's franchise agreement and related agreements with the 
document, and a copy of the completed franchise and related agreements 
intended to be executed by the parties at least 5 business days prior to 
the date the agreements are to be executed.
    Provided, however, That the obligations defined in paragraphs (b) 
through (g) of this section shall be deemed to have been met for both 
the franchisor and the franchise broker if either such person furnishes 
the prospective franchisee with the written disclosures required 
thereby.
    (h) To fail to return any funds or deposits in accordance with any 
conditions disclosed pursuant to paragraph (a)(7) of this section.



Sec.  436.2  Definitions.

    As used in this part, the following definitions shall apply:
    (a) The term franchise means any continuing commercial relationship 
created by any arrangement or arrangements whereby:
    (1)(i)(A) a person (hereinafter ``franchisee'') offers, sells, or 
distributes to any person other than a ``franchisor'' (as hereinafter 
defined),

[[Page 444]]

goods, commodities, or services which are:
    (1) Identified by a trademark, service mark, trade name, advertising 
or other commercial symbol designating another person (hereinafter 
``fran chisor''); or
    (2) Indirectly or directly required or advised to meet the quality 
standards prescribed by another person (hereinafter ``franchisor'') 
where the franchisee operates under a name using the trademark, service 
mark, trade name, advertising or other commercial symbol designating the 
franchisor; and
    (B)(1) The franchisor exerts or has authority to exert a significant 
degree of control over the franchisee's method of operation, including 
but not limited to, the franchisee's business organization, promotional 
activities, management, marketing plan or business affairs; or
    (2) The franchisor gives significant assistance to the franchisee in 
the latter's method of operation, including, but not limited to, the 
franchisee's business organization, management, marketing plan, 
promotional activities, or business affairs; Provided, however, That 
assistance in the franchisee's promotional activities shall not, in the 
absence of assistance in other areas of the franchisee's method of 
operation, constitute significant assistance; or
    (ii)(A) A person (hereinafter ``franchisee'') offers, sells, or 
distributes to any person other than a ``franchisor'' (as hereinafter 
defined), goods, commodities, or services which are:
    (1) Supplied by another person (hereinafter ``franchisor''), or
    (2) Supplied by a third person (e.g., a supplier) with whom the 
franchisee is directly or indirectly required to do business by another 
person (hereinafter ``franchisor''); or
    (3) Supplied by a third person (e.g., a supplier) with whom the 
franchisee is directly or indirectly advised to do business by another 
person (hereinafter ``franchisor'') where such third person is 
affiliated with the franchisor; and
    (B) The franchisor:
    (1) Secures for the franchisee retail outlets or accounts for said 
goods, commodities, or services; or
    (2) Secures for the franchisee locations or sites for vending 
machines, rack displays, or any other product sales display used by the 
franchisee in the offering, sale, or distribution of said goods, 
commodities, or services; or
    (3) Provides to the franchisee the services of a person able to 
secure the retail outlets, accounts, sites or locations referred to in 
paragraphs (a)(1)(ii)(B) (1) and (2) of this section; and
    (2) The franchisee is required as a condition of obtaining or 
commencing the franchise operation to make a payment or a commitment to 
pay to the franchisor, or to a person affiliated with the franchisor.
    (3) Exemptions. The provisions of this part shall not apply to a 
franchise:
    (i) Which is a ``fractional franchise''; or
    (ii) Where pursuant to a lease, license, or similar agreement, a 
person offers, sells, or distributes goods, commodities, or services on 
or about premises occupied by a retailer-grantor primarily for the 
retailer-grantor's own merchandising activities, which goods, 
commodities, or services are not purchased from the retailer-grantor or 
persons whom the lessee is directly or indirectly (A) required to do 
business with by the retailer-grantor or (B) advised to do business with 
by the retailer-grantor where such person is affiliated with the 
retailer-grantor; or
    (iii) Where the total of the payments referred to in paragraph 
(a)(2) of this section made during a period from any time before to 
within 6 months after commencing operation of the franchisee's business, 
is less than $500; or
    (iv) Where there is no writing which evidences any material term or 
aspect of the relationship or arrangement.
    (4) Exclusions. The term franchise shall not be deemed to include 
any continuing commercial relationship created solely by:
    (i) The relationship between an employer and an employee, or among 
general business partners; or
    (ii) Membership in a bona fide ``cooperative association''; or
    (iii) An agreement for the use of a trademark, service mark, trade 
name, seal, advertising, or other commercial

[[Page 445]]

symbol designating a person who offers on a general basis, for a fee or 
otherwise, a bona fide service for the evaluation, testing, or 
certification of goods, commodities, or services;
    (iv) An agreement between a licensor and a single licensee to 
license a trademark, trade name, service mark, advertising or other 
commercial symbol where such license is the only one of its general 
nature and type to be granted by the licensor with respect to that 
trademark, trade name, service mark, advertising, or other commercial 
symbol.
    (5) Any relationship which is represented either orally or in 
writing to be a franchise (as defined in this paragraphs (a) (1) and (2) 
of this section) is subject to the requirements of this part.
    (b) The term person means any individual, group, association, 
limited or general partnership, corporation, or any other business 
entity.
    (c) The term franchisor means any person who participates in a 
franchise relationship as a franchisor, as denoted in paragraph (a) of 
this section.
    (d) The term franchisee means any person (1) who participates in a 
franchise relationship as a franchisee, as denoted in paragraph (a) of 
this section, or (2) to whom an interest in a franchise is sold.
    (e) The term prospective franchisee includes any person, including 
any representative, agent, or employee of that person, who approaches or 
is approached by a franchisor or franchise broker, or any 
representative, agent, or employee thereof, for the purpose of 
discussing the establishment, or possible establishment, of a franchise 
relationship involving such a person.
    (f) The term business day means any day other than Saturday, Sunday, 
or the following national holidays: New Year's Day, Washington's 
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, 
Veterans' Day, Thanksgiving, and Christmas.
    (g) The term time for making of disclosures means ten (10) business 
days prior to the earlier of (1) the execution by a prospective 
franchisee of any franchise agreement or any other agreement imposing a 
binding legal obligation on such prospective franchisee, about which the 
franchisor, franchise broker, or any agent, representative, or employee 
thereof, knows or should know, in connection with the sale or proposed 
sale of a franchise, or (2) the payment by a prospective franchisee, 
about which the franchisor, franchise broker, or any agent, 
representative, or employee thereof, knows or should know, of any 
consideration in connection with the sale or proposed sale of a 
franchise.
    (h) The term fractional franchise means any relationship, as denoted 
by paragraph (a) of this section, in which the person described therein 
as a franchisee, or any of the current directors or executive officers 
thereof, has been in the type of business represented by the franchise 
relationship for more than 2 years and the parties anticipated, or 
should have anticipated, at the time the agreement establishing the 
franchise relationship was reached, that the sales arising from the 
relationship would represent no more than 20 percent of the sales in 
dollar volume of the franchisee.
    (i) The term affiliated person means a person (as defined in 
paragraph (b) of this section):
    (1) Which directly or indirectly controls, is controlled by, or is 
under common control with, a franchisor; or
    (2) Which directly or indirectly owns, controls, or holds with power 
to vote, 10 percent or more of the outstanding voting securities of a 
franchisor; or
    (3) Which has, in common with a franchisor, one or more partners, 
officers, directors, trustees, branch managers, or other persons 
occupying similar status or performing similar functions.
    (j) The term franchise broker means any person other than a 
franchisor or a franchisee who sells, offers for sale, or arranges for 
the sale of a franchise.
    (k) The term sale of a franchise includes a contract or agreement 
whereby a person obtains a franchise or interest in a franchise for 
value by purchase, license, or otherwise. This term shall not be deemed 
to include the renewal or extension of an existing franchise where there 
is no interruption in the operation of the franchised business by the 
franchisee, unless the new

[[Page 446]]

contracts or agreements contain material changes from those in effect 
between the franchisor and franchisee prior thereto.
    (l) A cooperative association is either (1) an association of 
producers of agricultural products authorized by section 1 of the 
Capper-Volstead Act, 7 U.S.C. 291; or (2) an organization operated on a 
cooperative basis by and for independent retailers which wholesales 
goods or furnishes services primarily to its member-retailers.
    (m) The term fiscal year means the franchisor's fiscal year.
    (n) The terms material, material fact, and material change shall 
include any fact, circumstance, or set of conditions which has a 
substantial likelihood of influencing a reasonable franchisee or a 
reasonable prospective franchisee in the making of a significant 
decision relating to a named franchise business or which has any 
significant financial impact on a franchisee or prospective franchisee.
    (o) The term personal meeting means a face-to-face meeting between a 
franchisor or franchise broker (or any agent, representative, or 
employee thereof) and a prospective franchisee which is held for the 
purpose of discussing the sale or possible sale of a franchise.



Sec.  436.3  Severability.

    If any provision of this part or its application to any person, act, 
or practice is held invalid, the remainder of the part or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

    Note 1: The Commission expresses no opinion as to the legality of 
any practice mentioned in this part. A provision for disclosure should 
not be construed as condonation or approval with respect to the matter 
required to be disclosed, nor as an indication of the Commission's 
intention not to enforce any applicable statute.
    Note 2: By taking action in this area, the Federal Trade Commission 
does not intend to annul, alter, or affect, or exempt any person subject 
to the provisions of this part from complying with the laws or 
regulations of any State, municipality, or other local government with 
respect to franchising practices, except to the extent that those laws 
or regulations are inconsistent with any provision of this part, and 
then only to the extent of the inconsistency. For the purposes of this 
part, a law or regulation of any State, municipality, or other local 
government is not inconsistent with this part if the protection such law 
or regulation affords any prospective franchisee is equal to or greater 
than that provided by this part. Examples of provisions which provide 
protection equal to or greater than that provided by this part include 
laws or regulations which require more complete record keeping by the 
franchisor or the disclosure of more complete information to the 
franchisee.
    Note 3: [As per Sec.  436.1(a)(24) of this part]:

                          Disclosure Statement

    Pursuant to 16 CFR 436.1 et seq., a Trade Regulation Rule of the 
Federal Trade Commission regarding Disclosure Requirements and 
Prohibitions Concerning Franchising and Business Opportunity Ventures, 
the following information is set forth on [name of franchisor] for your 
examination:
    1. Identifying information as to franchisor.
    2. Business experience of franchisor's directors and executive 
officers.
    3. Business experience of the franchisor.
    4. Litigation history.
    5. Bankruptcy history.
    6. Description of franchise.
    7. Initial funds required to be paid by a franchisee.
    8. Recurring funds required to be paid by a franchisee.
    9. Affiliated persons the franchisee is required or advised to do 
business with by the franchisor.
    10. Obligations to purchase.
    11. Revenues received by the franchisor in consideration of 
purchases by a franchisee.
    12. Financing arrangements.
    13. Restriction of sales.
    14. Personal participation required of the franchisee in the 
operation of the franchise.
    15. Termination, cancellation, and renewal of the franchise.
    16. Statistical information concerning the number of franchises (and 
company-owned outlets).
    17. Site selection.
    18. Training programs.
    19. Public figure involvement in the franchise.
    20. Financial information concerning the franchisor.



PART 444_CREDIT PRACTICES--Table of Contents




Sec.
444.1 Definitions.
444.2 Unfair credit practices.
444.3 Unfair or deceptive cosigner practices.
444.4 Late charges.
444.5 State exemptions.

    Authority: Sec. 18(a), 88 Stat. 2193, as amended 93 Stat. 95 (15 
U.S.C. 57a); 80 Stat. 383, as amended, 81 Stat. 54 (5 U.S.C. 552).

[[Page 447]]


    Source: 49 FR 7789, Mar. 1, 1984, unless otherwise noted.



Sec.  444.1  Definitions.

    (a) Lender. A person who engages in the business of lending money to 
consumers within the jurisdiction of the Federal Trade Commission.
    (b) Retail installment seller. A person who sells goods or services 
to consumers on a deferred payment basis or pursuant to a lease-purchase 
arrangement within the jurisdiction of the Federal Trade Commission.
    (c) Person. An individual, corporation, or other business 
organization.
    (d) Consumer. A natural person who seeks or acquires goods, 
services, or money for personal, family, or household use.
    (e) Obligation. An agreement between a consumer and a lender or 
retail installment seller.
    (f) Creditor. A lender or a retail installment seller.
    (g) Debt. Money that is due or alleged to be due from one to 
another.
    (h) Earnings. Compensation paid or payable to an individual or for 
his or her account for personal services rendered or to be rendered by 
him or her, whether denominated as wages, salary, commission, bonus, or 
otherwise, including periodic payments pursuant to a pension, 
retirement, or disability program.
    (i) Household goods. Clothing, furniture, appliances, one radio and 
one television, linens, china, crockery, kitchenware, and personal 
effects (including wedding rings) of the consumer and his or her 
dependents, provided that the following are not included within the 
scope of the term household goods:
    (1) Works of art;
    (2) Electronic entertainment equipment (except one television and 
one radio);
    (3) Items acquired as antiques; and
    (4) Jewelry (except wedding rings).
    (j) Antique. Any item over one hundred years of age, including such 
items that have been repaired or renovated without changing their 
original form or character.
    (k) Cosigner. A natural person who renders himself or herself liable 
for the obligation of another person without compensation. The term 
shall include any person whose signature is requested as a condition to 
granting credit to another person, or as a condition for forbearance on 
collection of another person's obligation that is in default. The term 
shall not include a spouse whose signature is required on a credit 
obligation to perfect a security interest pursuant to State law. A 
person who does not receive goods, services, or money in return for a 
credit obligation does not receive compensation within the meaning of 
this definition. A person is a cosigner within the meaning of this 
definition whether or not he or she is designated as such on a credit 
obligation.



Sec.  444.2  Unfair credit practices.

    (a) In connection with the extension of credit to consumers in or 
affecting commerce, as commerce is defined in the Federal Trade 
Commission Act, it is an unfair act or practice within the meaning of 
Section 5 of that Act for a lender or retail installment seller directly 
or indirectly to take or receive from a consumer an obligation that:
    (1) Constitutes or contains a cognovit or confession of judgment 
(for purposes other than executory process in the State of Louisiana), 
warrant of attorney, or other waiver of the right to notice and the 
opportunity to be heard in the event of suit or process thereon.
    (2) Constitutes or contains an executory waiver or a limitation of 
exemption from attachment, execution, or other process on real or 
personal property held, owned by, or due to the consumer, unless the 
waiver applies solely to property subject to a security interest 
executed in connection with the obligation.
    (3) Constitutes or contains an assignment of wages or other earnings 
unless:
    (i) The assignment by its terms is revocable at the will of the 
debtor, or
    (ii) The assignment is a payroll deduction plan or preauthorized 
payment plan, commencing at the time of the transaction, in which the 
consumer authorizes a series of wage deductions as a method of making 
each payment, or
    (iii) The assignment applies only to wages or other earnings already 
earned at the time of the assignment.

[[Page 448]]

    (4) Constitutes or contains a nonpossessory security interest in 
household goods other than a purchase money security interest.
    (b) [Reserved]



Sec.  444.3  Unfair or deceptive cosigner practices.

    (a) In connection with the extension of credit to consumers in or 
affecting commerce, as commerce is defined in the Federal Trade 
Commission Act, it is:
    (1) A deceptive act or practice within the meaning of section 5 of 
that Act for a lender or retail installment seller, directly or 
indirectly, to misrepresent the nature or extent of cosigner liability 
to any person.
    (2) An unfair act or practice within the meaning of section 5 of 
that Act for a lender or retail installment seller, directly or 
indirectly, to obligate a cosigner unless the cosigner is informed prior 
to becoming obligated, which in the case of open end credit shall mean 
prior to the time that the agreement creating the cosigner's liability 
for future charges is executed, of the nature of his or her liability as 
cosigner.
    (b) Any lender or retail installment seller who complies with the 
preventive requirements in paragraph (c) of this section does not 
violate paragraph (a) of this section.
    (c) To prevent these unfair or deceptive acts or practices, a 
disclosure, consisting of a separate document that shall contain the 
following statement and no other, shall be given to the cosigner prior 
to becoming obligated, which in the case of open end credit shall mean 
prior to the time that the agreement creating the cosigner's liability 
for future charges is executed:

                           Notice to Cosigner

    You are being asked to guarantee this debt. Think carefully before 
you do. If the borrower doesn't pay the debt, you will have to. Be sure 
you can afford to pay if you have to, and that you want to accept this 
responsibility.
    You may have to pay up to the full amount of the debt if the 
borrower does not pay. You may also have to pay late fees or collection 
costs, which increase this amount.
    The creditor can collect this debt from you without first trying to 
collect from the borrower. The creditor can use the same collection 
methods against you that can be used against the borrower, such as suing 
you, garnishing your wages, etc. If this debt is ever in default, that 
fact may become a part of your credit record.
    This notice is not the contract that makes you liable for the debt.



Sec.  444.4  Late charges.

    (a) In connection with collecting a debt arising out of an extension 
of credit to a consumer in or affecting commerce, as commerce is defined 
in the Federal Trade Commission Act, it is an unfair act or practice 
within the meaning of section 5 of that Act for a creditor, directly or 
indirectly, to levy or collect any deliquency charge on a payment, which 
payment is otherwise a full payment for the applicable period and is 
paid on its due date or within an applicable grace period, when the only 
delinquency is attributable to late fee(s) or delinquency charge(s) 
assessed on earlier installment(s).
    (b) For purposes of this section, collecting a debt means any 
activity other than the use of judicial process that is intended to 
bring about or does bring about repayment of all or part of a consumer 
debt.



Sec.  444.5  State exemptions.

    (a) If, upon application to the Federal Trade Commission by an 
appropriate State agency, the Federal Trade Commission determines that:
    (1) There is a State requirement or prohibition in effect that 
applies to any transaction to which a provision of this rule applies; 
and
    (2) The State requirement or prohibition affords a level of 
protection to consumers that is substantially equivalent to, or greater 
than, the protection afforded by this rule;

Then that provision of the rule will not be in effect in that State to 
the extent specified by the Federal Trade Commission in its 
determination, for as long as the State administers and enforces the 
State requirement or prohibition effectively.
    (b) [Reserved]



PART 453_FUNERAL INDUSTRY PRACTICES--Table of Contents




Sec.
453.1 Definitions.

[[Page 449]]

453.2 Price disclosures.
453.3 Misrepresentations.
453.4 Required purchase of funeral goods or funeral services.
453.5 Services provided without prior approval.
453.6 Retention of documents.
453.7 Comprehension of disclosures.
453.8 Declaration of intent.
453.9 State exemptions.

    Authority: 15 U.S.C. 57a(a); 15 U.S.C. 46(g); 5 U.S.C. 552.

    Source: 59 FR 1611, Jan. 11, 1994, unless otherwise noted.



Sec.  453.1  Definitions.

    (a) Alternative container. An ``alternative container'' is an 
unfinished wood box or other non-metal receptacle or enclosure, without 
ornamentation or a fixed interior lining, which is designed for the 
encasement of human remains and which is made of fiberboard, pressed-
wood, composition materials (with or without an outside covering) or 
like materials.
    (b) Cash advance item. A ``cash advance item'' is any item of 
service or merchandise described to a purchaser as a ``cash advance,'' 
``accommodation,'' ``cash disbursement,'' or similar term. A cash 
advance item is also any item obtained from a third party and paid for 
by the funeral provider on the purchaser's behalf. Cash advance items 
may include, but are not limited to: cemetery or crematory services; 
pallbearers; public transportation; clergy honoraria; flowers; musicians 
or singers; nurses; obituary notices; gratuities and death certificates.
    (c) Casket. A ``casket'' is a rigid container which is designed for 
the encasement of human remains and which is usually constructed of 
wood, metal, fiberglass, plastic, or like material, and ornamented and 
lined with fabric.
    (d) Commission. ``Commission'' refers to the Federal Trade 
Commission.
    (e) Cremation. ``Cremation'' is a heating process which incinerates 
human remains.
    (f) Crematory. A ``crematory'' is any person, partnership or 
corporation that performs cremation and sells funeral goods.
    (g) Direct cremation. A ``direct cremation'' is a disposition of 
human remains by cremation, without formal viewing, visitation, or 
ceremony with the body present.
    (h) Funeral goods. ``Funeral goods'' are the goods which are sold or 
offered for sale directly to the public for use in connection with 
funeral services.
    (i) Funeral provider. A ``funeral provider'' is any person, 
partnership or corporation that sells or offers to sell funeral goods 
and funeral services to the public.
    (j) Funeral services. ``Funeral services'' are any services which 
may be used to:
    (1) Care for and prepare deceased human bodies for burial, cremation 
or other final disposition; and
    (2) arrange, supervise or conduct the funeral ceremony or the final 
disposition of deceased human bodies.
    (k) Immediate burial. An ``immediate burial'' is a disposition of 
human remains by burial, without formal viewing, visitation, or ceremony 
with the body present, except for a graveside service.
    (l) Memorial service. A ``memorial service'' is a ceremony 
commemorating the deceased without the body present.
    (m) Funeral ceremony. A ``funeral ceremony'' is a service 
commemorating the deceased with the body present.
    (n) Outer burial container. An ``outer burial container'' is any 
container which is designed for placement in the grave around the casket 
including, but not limited to, containers commonly known as burial 
vaults, grave boxes, and grave liners.
    (o) Person. A ``person'' is any individual, partnership, 
corporation, association, government or governmental subdivision or 
agency, or other entity.
    (p) Services of funeral director and staff. The ``services of 
funeral director and staff'' are the basic services, not to be included 
in prices of other categories in Sec.  453.2(b)(4), that are furnished 
by a funeral provider in arranging any funeral, such as conducting the 
arrangements conference, planning the funeral, obtaining necessary 
permits, and placing obituary notices.



Sec.  453.2  Price disclosures.

    (a) Unfair or deceptive acts or practices. In selling or offering to 
sell funeral

[[Page 450]]

goods or funeral services to the public, it is an unfair or deceptive 
act or practice for a funeral provider to fail to furnish accurate price 
information disclosing the cost to the purchaser for each of the 
specific funeral goods and funeral services used in connection with the 
disposition of deceased human bodies, including at least the price of 
embalming, transportation of remains, use of facilities, caskets, outer 
burial containers, immediate burials, or direct cremations, to persons 
inquiring about the purchase of funerals. Any funeral provider who 
complies with the preventive requirements in paragraph (b) of this 
section is not engaged in the unfair or deceptive acts or practices 
defined here.
    (b) Preventive requirements. To prevent these unfair or deceptive 
acts or practices, as well as the unfair or deceptive acts or practices 
defined in Sec.  453.4(b)(1), funeral providers must:
    (1) Telephone price disclosure. Tell persons who ask by telephone 
about the funeral provider's offerings or prices any accurate 
information from the price lists described in paragraphs (b)(2) through 
(4) of this section and any other readily available information that 
reasonably answers the question.
    (2) Casket price list. (i) Give a printed or typewritten price list 
to people who inquire in person about the offerings or prices of caskets 
or alternative containers. The funeral provider must offer the list upon 
beginning discussion of, but in any event before showing caskets. The 
list must contain at least the retail prices of all caskets and 
alternative containers offered which do not require special ordering, 
enough information to identify each, and the effective date for the 
price list. In lieu of a written list, other formats, such as notebooks, 
brochures, or charts may be used if they contain the same information as 
would the printed or typewritten list, and display it in a clear and 
conspicuous manner. Provided, however, that funeral providers do not 
have to make a casket price list available if the funeral providers 
place on the general price list, specified in paragraph (b)(4) of this 
section, the information required by this paragraph.
    (ii) Place on the list, however produced, the name of the funeral 
provider's place of business and a caption describing the list as a 
``casket price list.''
    (3) Outer burial container price list. (i) Give a printed or 
typewritten price list to persons who inquire in person about outer 
burial container offerings or prices. The funeral provider must offer 
the list upon beginning discussion of, but in any event before showing 
the containers. The list must contain at least the retail prices of all 
outer burial containers offered which do not require special ordering, 
enough information to identify each container, and the effective date 
for the prices listed. In lieu of a written list, the funeral provider 
may use other formats, such as notebooks, brochures, or charts, if they 
contain the same information as the printed or typewritten list, and 
display it in a clear and conspicuous manner. Provided, however, that 
funeral providers do not have to make an outer burial container price 
list available if the funeral providers place on the general price list, 
specified in paragraph (b)(4) of this section, the information required 
by this paragraph.
    (ii) Place on the list, however produced, the name of the funeral 
provider's place of business and a caption describing the list as an 
``outer burial container price list.''
    (4) General price list. (i)(A) Give a printed or typewritten price 
list for retention to persons who inquire in person about the funeral 
goods, funeral services or prices of funeral goods or services offered 
by the funeral provider. The funeral provider must give the list upon 
beginning discussion of any of the following:
    (1) The prices of funeral goods or funeral services;
    (2) The overall type of funeral service or disposition; or
    (3) Specific funeral goods or funeral services offered by the 
funeral provider.
    (B) The requirement in paragraph (b)(4)(i)(A) of this section 
applies whether the discussion takes place in the funeral home or 
elsewhere. Provided, however, that when the deceased is removed for 
transportation to the funeral home, an in-person request at

[[Page 451]]

that time for authorization to embalm, required by Sec.  453.5(a)(2), 
does not, by itself, trigger the requirement to offer the general price 
list if the provider in seeking prior embalming approval discloses that 
embalming is not required by law except in certain special cases, if 
any. Any other discussion during that time about prices or the selection 
of funeral goods or services triggers the requirement under paragraph 
(b)(4)(i)(A) of this section to give consumers a general price list.
    (C) The list required in paragraph (b)(4)(i)(A) of this section must 
contain at least the following information:
    (1) The name, address, and telephone number of the funeral 
provider's place of business;
    (2) A caption describing the list as a ``general price list''; and
    (3) The effective date for the price list;
    (ii) Include on the price list, in any order, the retail prices 
(expressed either as the flat fee, or as the price per hour, mile or 
other unit of computation) and the other information specified below for 
at least each of the following items, if offered for sale:
    (A) Forwarding of remains to another funeral home, together with a 
list of the services provided for any quoted price;
    (B) Receiving remains from another funeral home, together with a 
list of the services provided for any quoted price;
    (C) The price range for the direct cremations offered by the funeral 
provider, together with:
    (1) A separate price for a direct cremation where the purchaser 
provides the container;
    (2) Separate prices for each direct cremation offered including an 
alternative container; and
    (3) A description of the services and container (where applicable), 
included in each price;
    (D) The price range for the immediate burials offered by the funeral 
provider, together with:
    (1) A separate price for an immediate burial where the purchaser 
provides the casket;
    (2) Separate prices for each immediate burial offered including a 
casket or alternative container; and
    (3) A description of the services and container (where applicable) 
included in that price;
    (E) Transfer of remains to funeral home;
    (F) Embalming;
    (G) Other preparation of the body;
    (H) Use of facilities and staff for viewing;
    (I) Use of facilities and staff for funeral ceremony;
    (J) Use of facilities and staff for memorial service;
    (K) Use of equipment and staff for graveside service;
    (L) Hearse; and
    (M) Limousine.
    (iii) Include on the price list, in any order, the following 
information:
    (A) Either of the following:
    (1) The price range for the caskets offered by the funeral provider, 
together with the statement: ``A complete price list will be provided at 
the funeral home.''; or
    (2) The prices of individual caskets, disclosed in the manner 
specified by paragraph (b)(2)(i) of this section; and
    (B) Either of the following:
    (1) The price range for the outer burial containers offered by the 
funeral provider, together with the statement: ``A complete price list 
will be provided at the funeral home.''; or
    (2) The prices of individual outer burial containers, disclosed in 
the manner specified by paragraph (b)(3)(i) of this section; and
    (C) Either of the following:
    (1) The price for the basic services of funeral director and staff, 
together with a list of the principal basic services provided for any 
quoted price and, if the charge cannot be declined by the purchaser, the 
statement: ``This fee for our basic services will be added to the total 
cost of the funeral arrangements you select. (This fee is already 
included in our charges for direct cremations, immediate burials, and 
forwarding or receiving remains.)''. If the charge cannot be declined by 
the purchaser, the quoted price shall include all charges for the 
recovery of unallocated funeral provider overhead, and funeral providers 
may include in the required disclosure the phrase ``and overhead'' after 
the word ``services''; or

[[Page 452]]

    (2) The following statement: ``Please note that a fee of (specify 
dollar amount) for the use of our basic services is included in the 
price of our caskets. This same fee shall be added to the total cost of 
your funeral arrangements if you provide the casket. Our services 
include (specify).'' The fee shall include all charges for the recovery 
of unallocated funeral provider overhead, and funeral providers may 
include in the required disclosure the phrase ``and overhead'' after the 
word ``services.'' The statement must be placed on the general price 
list together with the casket price range, required by paragraph 
(b)(4)(iii)(A)(1) of this section, or together with the prices of 
individual caskets, required by (b)(4)(iii)(A)(2) of this section.
    (iv) The services fee permitted by Sec.  453.2(b)(4)(iii)(C)(1) or 
(C)(2) is the only funeral provider fee for services, facilities or 
unallocated overhead permitted by this part to be non-declinable, unless 
otherwise required by law.
    (5) Statement of funeral goods and services selected. (i) Give an 
itemized written statement for retention to each person who arranges a 
funeral or other disposition of human remains, at the conclusion of the 
discussion of arrangements. The statement must list at least the 
following information:
    (A) The funeral goods and funeral services selected by that person 
and the prices to be paid for each of them;
    (B) Specifically itemized cash advance items. (These prices must be 
given to the extent then known or reasonably ascertainable. If the 
prices are not known or reasonably ascertainable, a good faith estimate 
shall be given and a written statement of the actual charges shall be 
provided before the final bill is paid.); and
    (C) The total cost of the goods and services selected.
    (ii) The information required by this paragraph (b)(5) may be 
included on any contract, statement, or other document which the funeral 
provider would otherwise provide at the conclusion of discussion of 
arrangements.
    (6) Other pricing methods. Funeral providers may give persons any 
other price information, in any other format, in addition to that 
required by Sec.  453.2(b)(2), (3), and (4) so long as the statement 
required by Sec.  453.2(b)(5) is given when required by the rule.



Sec.  453.3  Misrepresentations.

    (a) Embalming provisions. (1) Deceptive acts or practices. In 
selling or offering to sell funeral goods or funeral services to the 
public, it is a deceptive act or practice for a funeral provider to:
    (i) Represent that state or local law requires that a deceased 
person be embalmed when such is not the case;
    (ii) Fail to disclose that embalming is not required by law except 
in certain special cases, if any.
    (2) Preventive requirements. To prevent these deceptive acts or 
practices, as well as the unfair or deceptive acts or practices defined 
in Sec. Sec.  453.4(b)(1) and 453.5(2), funeral providers must:
    (i) Not represent that a deceased person is required to be embalmed 
for:
    (A) Direct cremation;
    (B) Immediate burial; or
    (C) A closed casket funeral without viewing or visitation when 
refrigeration is available and when state or local law does not require 
embalming; and
    (ii) Place the following disclosure on the general price list, 
required by Sec.  453.2(b)(4), in immediate conjunction with the price 
shown for embalming: ``Except in certain special cases, embalming is not 
required by law. Embalming may be necessary, however, if you select 
certain funeral arrangements, such as a funeral with viewing. If you do 
not want embalming, you usually have the right to choose an arrangement 
that does not require you to pay for it, such as direct cremation or 
immediate burial.'' The phrase ``except in certain special cases'' need 
not be included in this disclosure if state or local law in the area(s) 
where the provider does business does not require embalming under any 
circumstances.
    (b) Casket for cremation provisions--(1) Deceptive acts or 
practices. In selling or offering to sell funeral goods or funeral 
services to the public, it is a deceptive act or practice for a funeral 
provider to:
    (i) Represent that state or local law requires a casket for direct 
cremations;
    (ii) Represent that a casket is required for direct cremations.

[[Page 453]]

    (2) Preventive requirements. To prevent these deceptive acts or 
practices, as well as the unfair or deceptive acts or practices defined 
in Sec.  453.4(a)(1), funeral providers must place the following 
disclosure in immediate conjunction with the price range shown for 
direct cremations: ``If you want to arrange a direct cremation, you can 
use an alternative container. Alternative containers encase the body and 
can be made of materials like fiberboard or composition materials (with 
or without an outside covering). The containers we provide are (specify 
containers).'' This disclosure only has to be placed on the general 
price list if the funeral provider arranges direct cremations.
    (c) Outer burial container provisions--(1) Deceptive acts or 
practices. In selling or offering to sell funeral goods and funeral 
services to the public, it is a deceptive act or practice for a funeral 
provider to:
    (i) Represent that state or local laws or regulations, or particular 
cemeteries, require outer burial containers when such is not the case;
    (ii) Fail to disclose to persons arranging funerals that state law 
does not require the purchase of an outer burial container.
    (2) Preventive requirement. To prevent these deceptive acts or 
practices, funeral providers must place the following disclosure on the 
outer burial container price list, required by Sec.  453.2(b)(3)(i), or, 
if the prices of outer burial containers are listed on the general price 
list, required by Sec.  453.2(b)(4), in immediate conjunction with those 
prices: ``In most areas of the country, state or local law does not 
require that you buy a container to surround the casket in the grave. 
However, many cemeteries require that you have such a container so that 
the grave will not sink in. Either a grave liner or a burial vault will 
satisfy these requirements.'' The phrase ``in most areas of the 
country'' need not be included in this disclosure if state or local law 
in the area(s) where the provider does business does not require a 
container to surround the casket in the grave.
    (d) General provisions on legal and cemetery requirements--(1) 
Deceptive acts or practices. In selling or offering to sell funeral 
goods or funeral services to the public, it is a deceptive act or 
practice for funeral providers to represent that federal, state, or 
local laws, or particular cemeteries or crematories, require the 
purchase of any funeral goods or funeral services when such is not the 
case.
    (2) Preventive requirements. To prevent these deceptive acts or 
practices, as well as the deceptive acts or practices identified in 
Sec. Sec.  453.3(a)(1), 453.3(b)(1), and 453.3(c)(1), funeral providers 
must identify and briefly describe in writing on the statement of 
funeral goods and services selected (required by Sec.  453.2(b)(5)) any 
legal, cemetery, or crematory requirement which the funeral provider 
represents to persons as compelling the purchase of funeral goods or 
funeral services for the funeral which that person is arranging.
    (e) Provisions on preservative and protective value claims. In 
selling or offering to sell funeral goods or funeral services to the 
public, it is a deceptive act or practice for a funeral provider to:
    (1) Represent that funeral goods or funeral services will delay the 
natural decomposition of human remains for a long-term or indefinite 
time;
    (2) Represent that funeral goods have protective features or will 
protect the body from gravesite substances, when such is not the case.
    (f) Cash advance provisions--(1) Deceptive acts or practices. In 
selling or offering to sell funeral goods or funeral services to the 
public, it is a deceptive act or practice for a funeral provider to:
    (i) Represent that the price charged for a cash advance item is the 
same as the cost to the funeral provider for the item when such is not 
the case;
    (ii) Fail to disclose to persons arranging funerals that the price 
being charged for a cash advance item is not the same as the cost to the 
funeral provider for the item when such is the case.
    (2) Preventive requirements. To prevent these deceptive acts or 
practices, funeral providers must place the following sentence in the 
itemized statement of funeral goods and services selected, in immediate 
conjunction with the list of itemized cash advance items required by 
Sec.  453.2(b)(5)(i)(B): ``We

[[Page 454]]

charge you for our services in obtaining: (specify cash advance 
items),'' if the funeral provider makes a charge upon, or receives and 
retains a rebate, commission or trade or volume discount upon a cash 
advance item.



Sec.  453.4  Required purchase of funeral goods or funeral services.

    (a) Casket for cremation provisions--(1) Unfair or deceptive acts or 
practices. In selling or offering to sell funeral goods or funeral 
services to the public, it is an unfair or deceptive act or practice for 
a funeral provider, or a crematory, to require that a casket be 
purchased for direct cremation.
    (2) Preventive requirement. To prevent this unfair or deceptive act 
or practice, funeral providers must make an alternative container 
available for direct cremations, if they arrange direct cremations.
    (b) Other required purchases of funeral goods or funeral services--
(1) Unfair or deceptive acts or practices. In selling or offering to 
sell funeral goods or funeral services, it is an unfair or deceptive act 
or practice for a funeral provider to:
    (i) Condition the furnishing of any funeral good or funeral service 
to a person arranging a funeral upon the purchase of any other funeral 
good or funeral service, except as required by law or as otherwise 
permitted by this part;
    (ii) Charge any fee as a condition to furnishing any funeral goods 
or funeral services to a person arranging a funeral, other than the fees 
for: (1) Services of funeral director and staff, permitted by Sec.  
453.2(b)(4)(iii)(C); (2) other funeral services and funeral goods 
selected by the purchaser; and (3) other funeral goods or services 
required to be purchased, as explained on the itemized statement in 
accordance with Sec.  453.3(d)(2).
    (2) Preventive requirements. (i) To prevent these unfair or 
deceptive acts or practices, funeral providers must:
    (A) Place the following disclosure in the general price list, 
immediately above the prices required by Sec.  453.2(b)(4) (ii) and 
(iii): ``The goods and services shown below are those we can provide to 
our customers. You may choose only the items you desire. If legal or 
other requirements mean you must buy any items you did not specifically 
ask for, we will explain the reason in writing on the statement we 
provide describing the funeral goods and services you selected.'' 
Provided, however, that if the charge for ``services of funeral director 
and staff'' cannot be declined by the purchaser, the statement shall 
include the sentence: ``However, any funeral arrangements you select 
will include a charge for our basic services'' between the second and 
third sentences of the statement specified above herein. The statement 
may include the phrase ``and overhead'' after the word ``services'' if 
the fee includes a charge for the recovery of unallocated funeral 
provider overhead;
    (B) Place the following disclosure in the statement of funeral goods 
and services selected, required by Sec.  453.2(b)(5)(i): ``Charges are 
only for those items that you selected or that are required. If we are 
required by law or by a cemetery or crematory to use any items, we will 
explain the reasons in writing below.''
    (ii) A funeral provider shall not violate this section by failing to 
comply with a request for a combination of goods or services which would 
be impossible, impractical, or excessively burdensome to provide.



Sec.  453.5  Services provided without prior approval.

    (a) Unfair or deceptive acts or practices. In selling or offering to 
sell funeral goods or funeral services to the public, it is an unfair or 
deceptive act or practice for any provider to embalm a deceased human 
body for a fee unless:
    (1) State or local law or regulation requires embalming in the 
particular circumstances regardless of any funeral choice which the 
family might make; or
    (2) Prior approval for embalming (expressly so described) has been 
obtained from a family member or other authorized person; or
    (3) The funeral provider is unable to contact a family member or 
other authorized person after exercising due diligence, has no reason to 
believe the family does not want embalming performed, and obtains 
subsequent approval for embalming already performed (expressly so 
described). In seeking approval, the funeral provider

[[Page 455]]

must disclose that a fee will be charged if the family selects a funeral 
which requires embalming, such as a funeral with viewing, and that no 
fee will be charged if the family selects a service which does not 
require embalming, such as direct cremation or immediate burial.
    (b) Preventive requirement. To prevent these unfair or deceptive 
acts or practices, funeral providers must include on the itemized 
statement of funeral goods and services selected, required by Sec.  
453.2(b)(5), the statement: ``If you selected a funeral that may require 
embalming, such as a funeral with viewing, you may have to pay for 
embalming. You do not have to pay for embalming you did not approve if 
you selected arrangements such as a direct cremation or immediate 
burial. If we charged for embalming, we will explain why below.''



Sec.  453.6  Retention of documents.

    To prevent the unfair or deceptive acts or practices specified in 
Sec. Sec.  453.2 and 453.3 of this rule, funeral providers must retain 
and make available for inspection by Commission officials true and 
accurate copies of the price lists specified in Sec. Sec.  453.2(b) (2) 
through (4), as applicable, for at least one year after the date of 
their last distribution to customers, and a copy of each statement of 
funeral goods and services selected, as required by Sec.  453.2(b)(5), 
for at least one year from the date of the arrangements conference.



Sec.  453.7  Comprehension of disclosures.

    To prevent the unfair or deceptive acts or practices specified in 
Sec. Sec.  453.2 through 453.5, funeral providers must make all 
disclosures required by those sections in a clear and conspicuous 
manner. Providers shall not include in the casket, outer burial 
container, and general price lists, required by Sec. Sec.  453.2(b)(2)-
(4), any statement or information that alters or contradicts the 
information required by this part to be included in those lists.



Sec.  453.8  Declaration of intent.

    (a) Except as otherwise provided in Sec.  453.2(a), it is a 
violation of this rule to engage in any unfair or deceptive acts or 
practices specified in this rule, or to fail to comply with any of the 
preventive requirements specified in this rule;
    (b) The provisions of this rule are separate and severable from one 
another. If any provision is determined to be invalid, it is the 
Commission's intention that the remaining provisions shall continue in 
effect.
    (c) This rule shall not apply to the business of insurance or to 
acts in the conduct thereof.



Sec.  453.9  State exemptions.

    If, upon application to the Commission by an appropriate state 
agency, the Commission determines that:
    (a) There is a state requirement in effect which applies to any 
transaction to which this rule applies; and
    (b) That state requirement affords an overall level of protection to 
consumers which is as great as, or greater than, the protection afforded 
by this rule; then the Commission's rule will not be in effect in that 
state to the extent specified by the Commission in its determination, 
for as long as the State administers and enforces effectively the state 
requirement.



PART 455_USED MOTOR VEHICLE TRADE REGULATION RULE--Table of Contents




Sec.
455.1 General duties of a used vehicle dealer; definitions.
455.2 Consumer sales--window form.
455.3 Window form.
455.4 Contrary statements.
455.5 Spanish language sales.
455.6 State exemptions.
455.7 Severability.

    Authority: 88 Stat. 2189, 15 U.S.C. 2309; 38 Stat. 717, as amended 
15 U.S.C. 41 et seq.

    Source: 49 FR 45725, Nov. 19, 1984, unless otherwise noted.



Sec.  455.1  General duties of a used vehicle dealer; definitions.

    (a) It is a deceptive act or practice for any used vehicle dealer, 
when that dealer sells or offers for sale a used vehicle in or affecting 
commerce as commerce is defined in the Federal Trade Commission Act:
    (1) To misrepresent the mechanical condition of a used vehicle;

[[Page 456]]

    (2) To misrepresent the terms of any warranty offered in connection 
with the sale of a used vehicle; and
    (3) To represent that a used vehicle is sold with a warranty when 
the vehicle is sold without any warranty.
    (b) It is an unfair act or practice for any used vehicle dealer, 
when that dealer sells or offers for sale a used vehicle in or affecting 
commerce as commerce is defined in the Federal Trade Commission Act:
    (1) To fail to disclose, prior to sale, that a used vehicle is sold 
without any warranty; and
    (2) To fail to make available, prior to sale, the terms of any 
written warranty offered in connection with the sale of a used vehicle.
    (c) The Commission has adopted this Rule in order to prevent the 
unfair and deceptive acts or practices defined in paragraphs (a) and 
(b). It is a violation of this Rule for any used vehicle dealer to fail 
to comply with the requirements set forth in Sec. Sec.  455.2 through 
455.5 of this part. If a used vehicle dealer complies with the 
requirements of Sec. Sec.  455.2 through 455.5 of this part, the dealer 
does not violate this Rule.
    (d) The following definitions shall apply for purposes of this part:
    (1) Vehicle means any motorized vehicle, other than a motorcycle, 
with a gross vehicle weight rating (GVWR) of less than 8500 lbs., a curb 
weight of less than 6,000 lbs., and a frontal area of less than 46 sq. 
ft.
    (2) Used vehicle means any vehicle driven more than the limited use 
necessary in moving or road testing a new vehicle prior to delivery to a 
consumer, but does not include any vehicle sold only for scrap or parts 
(title documents surrendered to the State and a salvage certificate 
issued).
    (3) Dealer means any person or business which sells or offers for 
sale a used vehicle after selling or offering for sale five (5) or more 
used vehicles in the previous twelve months, but does not include a bank 
or financial institution, a business selling a used vehicle to an 
employee of that business, or a lessor selling a leased vehicle by or to 
that vehicle's lessee or to an employee of the lessee.
    (4) Consumer means any person who is not a used vehicle dealer.
    (5) Warranty means any undertaking in writing, in connection with 
the sale by a dealer of a used vehicle, to refund, repair, replace, 
maintain or take other action with respect to such used vehicle and 
provided at no extra charge beyond the price of the used vehicle.
    (6) Implied warranty means an implied warranty arising under State 
law (as modified by the Magnuson-Moss Act) in connection with the sale 
by a dealer of a used vehicle.
    (7) Service contract means a contract in writing for any period of 
time or any specific mileage to refund, repair, replace, or maintain a 
used vehicle and provided at an extra charge beyond the price of the 
used vehicle, provided that such contract is not regulated in your State 
as the business of insurance.
    (8) You means any dealer, or any agent or employee of a dealer, 
except where the term appears on the window form required by Sec.  
455.2(a).



Sec.  455.2  Consumer sales--window form.

    (a) General duty. Before you offer a used vehicle for sale to a 
consumer, you must prepare, fill in as applicable and display on that 
vehicle a ``Buyers Guide'' as required by this Rule.
    (1) The Buyers Guide shall be displayed prominently and 
conspicuously in any location on a vehicle and in such a fashion that 
both sides are readily readable. You may remove the form temporarily 
from the vehicle during any test drive, but you must return it as soon 
as the test drive is over.
    (2) The capitalization, punctuation and wording of all items, 
headings, and text on the form must be exactly as required by this Rule. 
The entire form must be printed in 100% black ink on a white stock no 
smaller than 11 inches high by 7\1/4\ inches wide in the type styles, 
sizes and format indicated.

[[Page 457]]

[GRAPHIC] [TIFF OMITTED] TC29SE91.051


[[Page 458]]


[GRAPHIC] [TIFF OMITTED] TC29SE91.052


When filling out the form, follow the directions in (b) through (e) of 
this section and Sec.  455.4 of this part.
    (b) Warranties--(1) No Implied Warranty--``As Is''/No Warranty. (i) 
If you offer the vehicle without any implied warranty, i.e., ``as is,'' 
mark the box provided. If you offer the vehicle with implied warranties 
only, substitute the disclosure specified below, and mark the box 
provided. If you first offer the vehicle ``as is'' or with implied 
warranties only but then sell it with a warranty, cross out the ``As 
Is--No Warranty'' or ``Implied Warranties Only'' disclosure, and fill in 
the warranty terms in accordance with paragraph (b)(2) of this section.
    (ii) If your State law limits or prohibits ``as is'' sales of 
vehicles, that State law overrides this part and this rule does not give 
you the right to sell ``as is.'' In such States, the heading ``As Is--No 
Warranty'' and the paragraph immediately accompanying that phrase must 
be deleted from the form, and the following heading and paragraph must 
be substituted. If you sell

[[Page 459]]

vehicles in States that permit ``as is'' sales, but you choose to offer 
implied warranties only, you must also use the following disclosure 
instead of ``As Is--No Warranty'': \1\
---------------------------------------------------------------------------

    \1\ See Sec.  455.5 n. 4 for the Spanish version of this disclosure.
---------------------------------------------------------------------------

                         Implied Warranties Only

    This means that the dealer does not make any specific promises to 
fix things that need repair when you buy the vehicle or after the time 
of sale. But, State law ``implied warranties'' may give you some rights 
to have the dealer take care of serious problems that were not apparent 
when you bought the vehicle.

    (2) Full/Limited Warranty. If you offer the vehicle with a warranty, 
briefly describe the warranty terms in the space provided. This 
description must include the following warranty information:
    (i) Whether the warranty offered is ``Full'' or ``Limited.'' \2\ 
Mark the box next to the appropriate designation.
---------------------------------------------------------------------------

    \2\ A ``Full'' warranty is defined by the Federal Minimum Standards 
for Warranty set forth in 104 of the Magnuson-Moss Warranty Act, 15 
U.S.C. 2304 (1975). The Magnuson-Moss Warranty Act does not apply to 
vehicles manufactured before July 4, 1975. Therefore, if you choose not 
to designate ``Full'' or ``Limited'' for such cars, cross out both 
designations, leaving only ``Warranty''.
---------------------------------------------------------------------------

    (ii) Which of the specific systems are covered (for example, 
``engine, transmission, diffential''). You cannot use shorthand, such as 
``drive train'' or ``power train'' for covered systems.
    (iii) The duration (for example, ``30 days or 1,000 miles, whichever 
occurs first'').
    (iv) The percentage of the repair cost paid by you (for example, 
``The dealer will pay 100% of the labor and 100% of the parts.'')
    (v) If the vehicle is still under the manufacturer's original 
warranty, you may add the following paragraph below the ``Full/Limited 
Warranty'' disclosure: MANUFACTURER'S WARRANTY STILL APPLIES. The 
manufacturer's original warranty has not expired on the vehicle. Consult 
the manufacturer's warranty booklet for details as to warranty coverage, 
service location, etc.

If, following negotiations, you and the buyer agree to changes in the 
warranty coverage, mark the changes on the form, as appropriate. If you 
first offer the vehicle with a warranty, but then sell it without one, 
cross out the offered warranty and mark either the ``As Is--No 
Warranty'' box or the ``Implied Warranties Only'' box, as appropriate.
    (3) Service contracts. If you make a service contract (other than a 
contract that is regulated in your State as the business of insurance) 
available on the vehicle, you must add the following heading and 
paragraph below the ``Full/Limited Warranty'' disclosure and mark the 
box provided. \3\
---------------------------------------------------------------------------

    \3\ See Sec.  455.5 n. 4 for the Spanish version of this disclosure.

    [squ]Service Contract
    A service contract is available at an extra charge on this vehicle. 
If you buy a service contract within 90 days of the time of sale, State 
law ``implied warranties'' may give you additional rights.

    (c) Name and Address. Put the name and address of your dealership in 
the space provided. If you do not have a dealership, use the name and 
address of your place of business (for example, your service station) or 
your own name and home address.
    (d) Make, Model, Model Year, VIN. Put the vehicle's name (for 
example, ``Chevrolet''), model (for example, ``Vega''), model year, and 
Vehicle Identification Number (VIN) in the spaces provided. You may 
write the dealer stock number in the space provided or you may leave 
this space blank.
    (e) Complaints. In the space provided, put the name and telephone 
number of the person who should be contacted if any complaints arise 
after sale.
    (f) Optional Signature Line. In the space provided for the name of 
the individual to be contacted in the event of complaints after sale, 
you may include a signature line for a buyer's signature. If you opt to 
include a signature line, you must include a disclosure in immediate 
proximity to the signature line stating: ``I hereby acknowledge receipt 
of the Buyers Guide at the closing of this sale.'' You may pre-print 
this language on the form if you choose.

[49 FR 45725, Nov. 19, 1984, as amended at 60 FR 62205, Dec. 5, 1995]

[[Page 460]]



Sec.  455.3  Window form.

    (a) Form given to buyer. Give the buyer of a used vehicle sold by 
you the window form displayed under Sec.  455.2 containing all of the 
disclosures required by the Rule and reflecting the warranty coverage 
agreed upon. If you prefer, you may give the buyer a copy of the 
original, so long as that copy accurately reflects all of the 
disclosures required by the Rule and the warranty coverage agreed upon.
    (b) Incorporated into contract. The information on the final version 
of the window form is incorporated into the contract of sale for each 
used vehicle you sell to a consumer. Information on the window form 
overrides any contrary provisions in the contract of sale. To inform the 
consumer of these facts, include the following language conspicuously in 
each consumer contract of sale:

    The information you see on the window form for this vehicle is part 
of this contract. Information on the window form overrides any contrary 
provisions in the contract of sale.



Sec.  455.4  Contrary statements.

    You may not make any statements, oral or written, or take other 
actions which alter or contradict the disclosures required by Sec. Sec.  
455.2 and 455.3. You may negotiate over warranty coverage, as provided 
in Sec.  455.2(b) of this part, as long as the final warranty terms are 
identified in the contract of sale and summarized on the copy of the 
window form you give to the buyer.



Sec.  455.5  Spanish language sales.

    If you conduct a sale in Spanish, the window form required by Sec.  
455.2 and the contract disclosures required by Sec.  455.3 must be in 
that language. You may display on a vehicle both an English language 
window form and a Spanish language translation of that form. Use the 
following translation and layout for Spanish language sales: \4\
---------------------------------------------------------------------------

    \4\ Use the following language for the ``Implied Warranties Only'' 
disclosure when required by Sec.  455.2(b)(1):
    Garant[iacute]as implic[iacute]tas solamente
    Este t[eacute]rmino significa que el vendedor no hace promesas 
espec[iacute]ficas de arreglar lo que requiera reparaci[oacute]n cuando 
usted compra el veh[iacute]culo o despu[eacute]s del momento de la 
venta. Pero, las ``garant[iacute]as impl[iacute]citas'' de la ley 
estatal pueden darle a usted algunos derechos y hacer que el vendedor 
resuelva problemas graves que no fueron evidentes cuando usted 
compr[oacute] el veh[iacute]culo.
    Use the following language for the ``Service Contract'' disclosure 
required by Sec.  455.2(b)(3):
    CONTRATO DE SERVICIO. Este veh[iacute]culo tiene disponible un 
contrato de servicio a un precio adicional. Pida los detalles en cuanto 
a cobertura, deducible, precio y exclusiones. Si adquiere usted un 
contrato de servicio dentro de los 90 d[iacute]as del momento de la 
venta, las ``garant[iacute]as impl[iacute]citas'' de acuerdo a la ley 
del estado pueden concederle derechos adicionales.

---------------------------------------------------------------------------

[[Page 461]]

[GRAPHIC] [TIFF OMITTED] TC29SE91.053


[[Page 462]]


[GRAPHIC] [TIFF OMITTED] TC29SE91.054


[49 FR 45725, Nov. 19, 1984, as amended at 60 FR 62205, Dec. 5, 1995]



Sec.  455.6  State exemptions.

    (a) If, upon application to the Commission by an appropriate State 
agency, the Commission determines, that--
    (1) There is a State requirement in effect which applies to any 
transaction to which this rule applies; and
    (2) That State requirement affords an overall level of protection to 
consumers which is as great as, or greater than, the protection afforded 
by this Rule; then the Commission's Rule will not be in effect in that 
State to the extent specified by the Commission in its determination, 
for as long as the State administers and enforces effectively the State 
requirement.
    (b) Applications for exemption under subsection (a) should be 
directed to the Secretary of the Commission. When appropriate, 
proceedings will be commenced in order to make a determination described 
in paragraph (a) of this section, and will be conducted in accordance 
with subpart C of part 1 of the Commission's Rules of Practice.



Sec.  455.7  Severability.

    The provisions of this part are separate and severable from one 
another. If

[[Page 463]]

any provision is determined to be invalid, it is the Commission's 
intention that the remaining provisions shall continue in effect.



PART 456_OPHTHALMIC PRACTICE RULES--Table of Contents




Sec.
456.1 Definitions.
456.2 Separation of examination and dispensing.
456.3 Federal or State employees.
456.4 Declaration of Commission Intent.

    Authority: 15 U.S.C. 57a; 5 U.S.C. 552.

    Source: 57 FR 18822, May 1, 1992, unless otherwise noted.



Sec.  456.1  Definitions.

    (a) A patient is any person who has had an eye examination.
    (b) An eye examination is the process of determining the refractive 
condition of a person's eyes or the presence of any visual anomaly by 
the use of objective or subjective tests.
    (c) Ophthalmic goods are eyeglasses, or any component of eyeglasses, 
and contact lenses.
    (d) Ophthalmic services are the measuring, fitting, and adjusting of 
ophthalmic goods subsequent to an eye examination.
    (e) An ophthalmologist is any Doctor of Medicine or Osteopathy who 
performs eye examinations.
    (f) An optometrist is any Doctor of Optometry.
    (g) A prescription is the written specifications for lenses for 
eyeglasses which are derived from an eye examination, including all of 
the information specified by state law, if any, necessary to obtain 
lenses for eyeglasses.



Sec.  456.2  Separation of examination and dispensing.

    It is an unfair act or practice for an ophthalmologist or 
optometrist to:
    (a) Fail to provide to the patient one copy of the patient's 
prescription immediately after the eye examination is completed. 
Provided: An ophthalmologist or optometrist may refuse to give the 
patient a copy of the patient's prescription until the patient has paid 
for the eye examination, but only if that ophthalmologist or optometrist 
would have required immediate payment from that patient had the 
examination revealed that no ophthalmic goods were required;
    (b) Condition the availability of an eye examination to any person 
on a requirement that the patient agree to purchase any ophthalmic goods 
from the ophthalmologist or optometrist;
    (c) Charge the patient any fee in addition to the ophthalmologist's 
or optometrist's examination fee as a condition to releasing the 
prescription to the patient. Provided: An ophthalmologist or optometrist 
may charge an additional fee for verifying ophthalmic goods dispensed by 
another seller when the additional fee is imposed at the time the 
verification is performed; or
    (d) Place on the prescription, or require the patient to sign, or 
deliver to the patient a form or notice waiving or disclaiming the 
liability or responsibility of the ophthalmologist or optometrist for 
the accuracy of the eye examination or the accuracy of the ophthalmic 
goods and services dispensed by another seller.



Sec.  456.3  Federal or State employees.

    This rule does not apply to ophthalmologists or optometrists 
employed by any Federal, State or local government entity.



Sec.  456.4  Declaration of Commission Intent.

    In prohibiting the use of waivers and disclaimers of liability in 
Sec.  456.2(d), it is not the Commission's intent to impose liability on 
an ophthalmologist or optometrist for the ophthalmic goods and services 
dispensed by another seller pursuant to the ophthalmologist's or 
optometrist's prescription.



PART 460_LABELING AND ADVERTISING OF HOME INSULATION--Table of Contents




Sec.
460.1 What this regulation does.
460.2 What is home insulation.
460.3 Who is covered.
460.4 When the rules apply.
460.5 R-value tests.
460.6 ``Representative thickness'' testing.
460.7 Which test version to use.
460.8 R-value tolerances.
460.9 What test records you must keep.
460.10 How statements must be made.
460.11 Rounding off R-values.

[[Page 464]]

460.12 Labels.
460.13 Fact sheets.
460.14 How retailers must handle fact sheets.
460.15 How installers must handle fact sheets.
460.16 What new home sellers must tell new home buyers.
460.17 What installers must tell their customers.
460.18 Insulation ads.
460.19 Savings claims.
460.20 R-value per inch claims.
460.21 Government claims.
460.22 Tax claims.
460.23 Other laws, rules, and orders.
460.24 Stayed or invalid parts.

Appendix to Part 460--Exemptions

    Authority: 38 Stat. 717, as amended (15 U.S.C. 41 et seq.).

    Source: 44 FR 50242, Aug. 27, 1979, unless otherwise noted.



Sec.  460.1  What this regulation does.

    This regulation deals with home insulation labels, fact sheets, ads, 
and other promotional materials in or affecting commerce, as 
``commerce'' is defined in the Federal Trade Commission Act. If you are 
covered by this regulation, breaking any of its rules is an unfair and 
deceptive act or practice or an unfair method of competition under 
section 5 of that Act. You can be fined heavily (up to $10,000 plus an 
adjustment for inflation, under Sec.  1.98 of this chapter) each time 
you break a rule.

[44 FR 50242, Aug. 27, 1979, as amended at 61 FR 54549, Oct. 21, 1996; 
61 FR 55840, Oct. 29, 1996]



Sec.  460.2  What is home insulation.

    Insulation is any material mainly used to slow down heat flow. It 
may be mineral or organic, fibrous, cellular, or reflective (aluminum 
foil). It may be in rigid, semirigid, flexible, or loose-fill form. Home 
insulation is for use in old or new homes, condominiums, cooperatives, 
apartments, modular homes, or mobile homes. It does not include pipe 
insulation. It does not include any kind of duct insulation except for 
duct wrap.



Sec.  460.3  Who is covered.

    You are covered by this regulation if you are a member of the home 
insulation industry. This includes individuals, firms, partnerships, and 
corporations. It includes manufacturers, distributors, franchisors, 
installers, retailers, utility companies, and trade associations. 
Advertisers and advertising agencies are also covered. So are labs doing 
tests for industry members. If you sell new homes to consumers, you are 
covered.



Sec.  460.4  When the rules apply.

    You must follow these rules each time you import, manufacture, 
distribute, sell, install, promote, or label home insulation. You must 
follow them each time you prepare, approve, place, or pay for home 
insulation labels, fact sheets, ads, or other promotional materials for 
consumer use. You must also follow them each time you supply anyone 
covered by this regulation with written information that is to be used 
in labels, fact sheets, ads, or other promotional materials for consumer 
use. Testing labs must follow the rules unless the industry members 
tells them, in writing, that labels, fact sheets, ads, or other 
promotional materials for home insulation will not be based on the test 
results.



Sec.  460.5  R-value tests.

    R-value measures resistance to heat flow. R-values given in labels, 
fact sheets, ads, or other promotional materials must be based on tests 
done under the methods listed below. They were designed by the American 
Society of Testing and Materials (ASTM). The test methods are:
    (a) All types of insulation except aluminum foil must be tested with 
ASTM C 177-85 (Reapproved 1993), ``Standard Test Method for Steady-State 
Heat Flux Measurements and Thermal Transmission Properties by Means of 
the Guarded-Hot-Plate Apparatus;'' ASTM C 236-89 (Reapproved 1993), 
``Standard Test Method for Steady-State Thermal Performance of Building 
Assemblies by Means of a Guarded Hot Box;'' ASTM C 518-91, ``Standard 
Test Method for Steady-State Heat Flux Measurements and Thermal 
Transmission Properties by Means of the Heat Flow Meter Apparatus;'' 
ASTM C 976-90, ``Standard Test Method for Thermal Performance of 
Building Assemblies by Means of a Calibrated Hot Box;'' or ASTM C 1114-
95, ``Standard Test Method for Steady-State

[[Page 465]]

Thermal Transmission Properties by Means of the Thin-Heater Apparatus.'' 
The tests must be done at a mean temperature of 75 [deg]Fahrenheit. The 
tests must be done on the insulation material alone (excluding any 
airspace). R-values (``thermal resistance'') based upon heat flux 
measurements according to ASTM C 177-85 (Reapproved 1993) or ASTM C 518-
91 must be reported only in accordance with the requirements and 
restrictions of ASTM C 1045-90, ``Standard Practice for Calculating 
Thermal Transmission Properties from Steady-State Heat Flux 
Measurements.'' These incorporations by reference were approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. Copies of the test procedures and standard practice may 
be obtained from the American Society of Testing and Materials, 1916 
Race Street, Philadelphia, PA 19103. Copies may be inspected at the 
Federal Trade Commission, Consumer Response Center, Room 130, 600 
Pennsylvania Avenue, NW, Washington, DC 20580, or at the Office of the 
Federal Register, 800 North Capitol Street, NW, Suite 700, Washington, 
DC.
    (1) For polyurethane, poly iso cyanurate, and extruded polystyrene, 
the tests must be done on samples that fully reflect the effect of aging 
on the product's R-value. To age the sample, follow the procedure in 
paragraph 4.6.4 of GSA Specification HH-I-530A, or another reliable 
procedure.
    (2) For loose-fill cellulose, the tests must be done at the settled 
density determined under paragraph 8 of ASTM C 739-91, ``Standard 
Specification for Cellulosic Fiber (Wood-Base) Loose-Fill Thermal 
Insulation.'' This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. Copies of the test procedure may be obtained from the 
American Society of Testing and Materials, 1916 Race Street, 
Philadelphia, PA 19103. Copies may be inspected at the Federal Trade 
Commission, Consumer Response Center, Room 130, 600 Pennsylvania Avenue, 
NW, Washington, DC 20580, or at the Office of the Federal Register, 800 
North Capitol Street, NW, Suite 700, Washington, DC.
    (3) For loose-fill mineral wool, the tests must be done on samples 
that fully reflect the effect of settling on the product's R-value. When 
a settled density procedure becomes part of a final GSA Specification 
for loose-fill mineral wool, the tests must be done at the settled 
density determined under the GSA Specification.
    (b) Aluminum foil systems with more than one sheet must be tested 
with ASTM C 236-89 (Reapproved 1993) or ASTM C 976-90, which are 
incorporated by reference in paragraph (a) of this section. The tests 
must be done at a mean temperature of 75 [deg]Fahrenheit, with a 
temperature differential of 30 [deg]Fahrenheit.
    (c) Single sheet systems of aluminum foil must be tested with ASTM 
E408 or another test method that provides comparable results. This tests 
the emissivity of the foil--its power to radiate heat. To get the R-
value for a specific emissivity level, air space, and direction of heat 
flow, use the tables in the most recent edition of the American Society 
of Heating, Refrigerating, and Air-Conditioning Engineers' (ASHRAE) 
Handbook. You must use the R-value shown for 50 [deg]Fahrenheit, with a 
temperature differential of 30 [deg]Fahrenheit.
    (d) For insulation materials with foil facings, you must test the R-
value of the material alone (excluding any air spaces) under the methods 
listed in paragraph (a) of this section. You can also determine the R-
value of the material in conjunction with an air space. You can use one 
of two methods to do this:
    (1) You can test the system, with its air space, under ASTM C 236-89 
(Reapproved 1993) or ASTM C 976-90, which are incorporated by reference 
in paragraph (a) of this section. If you do this, you must follow the 
rules in paragraph (a) of this section on temperature, aging and settled 
density.
    (2) You can add up the tested R-value of the material and the R-
value of the air space. To get the R-value for the air space, you must 
follow the rules in paragraph (c) of this section.

[44 FR 50242, Aug. 27, 1979, as amended at 55 FR 10055, Mar. 19, 1990; 
55 FR 12110, Mar. 30, 1990; 61 FR 13665, Mar. 28, 1996; 63 FR 71587, 
Dec. 28, 1998]

[[Page 466]]



Sec.  460.6  ``Representative thickness'' testing.

    All tests except aluminum foil tests must be done at a 
representative thickness for every thickness shown in a label, fact 
sheet, ad, or other promotional material. ``Representative thickness'' 
means a thickness at which the R-value per unit will vary no more than 
plus or minus 2% with increases in thickness. However, if the thickness 
shown in your label, fact sheet, ad, or promotional material is less 
than the representative thickness, then you can test the insulation at 
the thickness shown.



Sec.  460.7  Which test version to use.

    Use the version of the ASTM test method that was in effect when this 
regulation was promulgated. If ASTM changes a test method, the new 
version will automatically replace the old one in these rules 90 days 
after ASTM first publishes the change. However, the Commission's staff 
or a person affected by the change can petition the Commission during 
the 90-day period not to adopt the change or to reopen the proceeding to 
consider it further.



Sec.  460.8  R-value tolerances.

    If you are an industry member, the R-value of any insulation you 
sell cannot be more than 10% below the R-value shown in a label, fact 
sheet, ad, or other promotional material for that insulation. However, 
if you are not a manufacturer, you can rely on the R-value data given to 
you by the manufacturer, unless you know or should know that the data is 
false or not based on the proper tests.



Sec.  460.9  What test records you must keep.

    Manufacturers and testing labs must keep records of each item of 
information in the ``Report'' section of the ASTM test method that is 
used for a test. They must also keep the following records:
    (a) The name and address of the testing lab that did each test.
    (b) The date of each test.
    (c) For manufacturers, the date each test report was received from a 
lab. For labs, the date each test report was sent to a manufacturer.
    (d) For extruded polystyrene, polyurethane, and polyisocyanurate, 
the age (in days) of the specimen that was tested.
    (e) For aluminum foil, the emissivity level that was found in the 
test.

Manufacturers who own their own testing labs need not keep records of 
the information in paragraph (c) of this section.

Keep these records for at least three years. If the documents show proof 
for your claims, the three years will begin again each time you make the 
claim. Federal Trade Commission staff members can check these records at 
any time, but they must give you reasonable notice first.



Sec.  460.10  How statements must be made.

    All statements called for by this regulation must be made clearly 
and conspicuously. Among other things, you must follow the Commission's 
enforcement policy statement for clear and conspicuous disclosures in 
foreign language advertising and sales materials, 16 CFR 14.9.

[61 FR 13666, Mar. 28, 1996]



Sec.  460.11  Rounding off R-values.

    R-values shown in labels, fact sheets, ads, or other promotional 
materials must be rounded to the nearest tenth. However, R-values of 10 
or more may be rounded to the nearest whole number.



Sec.  460.12  Labels.

    If you are a manufacturer, you must label all packages of your 
insulation. The labels must contain:
    (a) The type of insulation.
    (b) A chart showing these items:
    (1) For mineral fiber batts and blankets: the R-value, length, 
width, thickness, and square feet of insulation in the package.
    (2) For all loose-fill insulation except cellulose: The minimum 
thickness, maximum net coverage area, and minimum weight per square foot 
at R-values of 11, 19, and 22. You must also give this information for 
any additional R-values you list on the chart. Labels for

[[Page 467]]

these products must state the minimum net weight of the insulation in 
the package.
    (3) For loose-fill cellulose insulation: the minimum thickness, 
maximum net coverage area, number of bags per 1,000 square feet, and 
minimum weight per square foot at R-values of 13, 19, 24, 32, and 40. 
You must also give this information for any additional R-values you list 
on the chart. Labels for this product must state the minimum net weight 
of the insulation in the package.
    (4) For boardstock: the R-value, length, width, and thickness of the 
boards in the package, and the square feet of insulation in the package.
    (5) For aluminum foil: the number of foil sheets; the number and 
thickness of the air spaces; and the R-value provided by that system 
when the direction of heat flow is up, down, and horizontal. You can 
show the R-value for only one direction of heat flow if you clearly and 
conspicuously state that the foil can only be used in that application.
    (6) For insulation materials with foil facings, you must follow the 
rule that applies to the material itself. For example, if you 
manufacture boardstock with a foil facing, follow paragraph (b)(4) of 
this section. You can also show the R-value of the insulation when it is 
installed in conjunction with an air space. This is its ``system R-
value.'' If you do this, you must clearly and conspicuously state the 
conditions under which the system R-value can be attained.
    (7) For air duct insulation: The R-value, length, width, thickness, 
and square feet of insulation in the package.
    (c) The following statement: ``R means resistance to heat flow. The 
higher the R-value, the greater the insulating power.''
    (d) If installation instructions are included on the label or with 
the package, add this statement: ``To get the marked R-value, it is 
essential that this insulation be installed properly. If you do it 
yourself, follow the instructions carefully.''
    (e) If no instructions are included, add this statement: ``To get 
the marked R-value, it is essential that this insulation be installed 
properly. If you do it yourself, get instructions and follow them 
carefully. Instructions do not come with this package.''



Sec.  460.13  Fact sheets.

    If you are a manufacturer, you must give retailers and installers 
fact sheets for the insulation products you sell to them. Each sheet 
must contain what is listed here. You can add any disclosures that are 
required by federal laws, regulations, rules, or orders. You can add any 
disclosures that are required by State or local laws, rules, and orders, 
unless they are inconsistent with the provisions of this regulation. Do 
not add anything else.

Each fact sheet must contain these items:
    (a) The name and address of the manufacturer. It can also include a 
logo or other symbol that the manufacturer uses.
    (b) A heading: ``This is -------- insulation.'' Fill in the blank 
with the type and form of your insulation.
    (c) The heading must be followed by a chart:
    (1) If Sec.  460.12(b) requires a chart for your product's label, 
you must use that chart. For foamed-in-place insulations, you must show 
the R-value of your product at 3\1/2\ inches. You can also show R-values 
at other thicknesses.
    (2) You can put the charts for similar products on the same fact 
sheet. For example, if you sell insulation boards or batts in three 
different thicknesses, you can put the label charts for all three 
products on one fact sheet. If you sell loose-fill insulation in two 
different bag sizes, you can put both coverage charts on one fact sheet, 
as long as you state which coverage chart applies to each bag size.
    (d) For urea-based foam insulation, the chart must be followed by 
this paragraph:

``Foam insulation shrinks after it is installed. This shrinkage may 
significantly reduce the R-value you get.''


However, you can lower your product's R-value to account for shrinkage. 
To do this, you must have reliable scientific proof of the extent of 
shrinkage for your product and of its effect on R-value. If you lower 
your product's R-

[[Page 468]]

value, you need not make the above statement.
    (e) For air duct insulation, the chart must be followed by this 
statement:

``The R-value of this insulation varies depending on how much it is 
compressed during installation.''

    (f) After the chart and any statement dealing with the specific type 
of insulation, ALL fact sheets must carry this statement, boxed, in 12-
point type:

                        Read This Before You Buy

    What You Should Know About R-values

    The chart shows the R-value of this insulation. R means resistance 
to heat flow. The higher the R-value, the greater the insulating power. 
Compare insulation R-values before you buy.
    There are other factors to consider. The amount of insulation you 
need depends mainly on the climate you live in. Also, your fuel savings 
from insulation will depend upon the climate, the type and size of your 
house, the amount of insulation already in your house, and your fuel use 
patterns and family size. If you buy too much insulation, it will cost 
you more than what you'll save on fuel.
    To get the marked R-value, it is essential that this insulation be 
installed properly.

[44 FR 50242, Aug. 27, 1979, as amended at 45 FR 68928, Oct. 17, 1980]



Sec.  460.14  How retailers must handle fact sheets.

    If you sell insulation to do-it-yourself customers, you must have 
fact sheets for the insulation products you sell. You must make the fact 
sheets available to your customers. You can decide how to do this, as 
long as your insulation customers are likely to notice them. For 
example, you can put them in a display, and let customers take copies of 
them. You can keep them in a binder at a counter or service desk, and 
have a sign telling customers where the fact sheets are.



Sec.  460.15  How installers must handle fact sheets.

    If you are an installer, you must have fact sheets for the 
insulation products you sell. Before customers agree to buy insulation 
from you, you must show them the fact sheet(s) for the type(s) of 
insulation they want. You can decide how to do this. For example, you 
can give each customer a copy of the fact sheet(s). You can keep the 
fact sheets in a binder, and show customers the binder before they agree 
to buy.



Sec.  460.16  What new home sellers must tell new home buyers.

    If you are a new home seller, you must put the following information 
in every sales contract: The type, thickness, and R-value of the 
insulation that will be installed in each part of the house. There is an 
exception to this rule. If the buyer signs a sales contract before you 
know what type of insulation will be put in the house, or if there is a 
change in the contract, you can give the buyer a receipt stating this 
information as soon as you find out.



Sec.  460.17  What installers must tell their customers.

    If you are an installer, you must give your customers a contract or 
receipt for the insulation you install. For all insulation except loose-
fill and aluminum foil, the receipt must show the coverage area, 
thickness, and R-value of the insulation you installed. For loose-fill, 
the receipt must show those three items plus the number of bags used. 
For aluminum foil, the receipt must show the number and thickness of the 
air spaces, the direction of heat flow, and the R-value. The receipt 
must be dated and signed by the installer. To figure out the R-value of 
the insulation, use the data that the manufacturer gives you. Do not 
multiply the R-value for one inch by the number of inches you installed. 
If you put insulation in more than one part of the house, put the data 
for each part on the receipt. You can do this on one receipt, as long as 
you do not add up the coverage areas or R-values for different parts of 
the house.



Sec.  460.18  Insulation ads.

    (a) If your ad gives an R-value, you must give the type of 
insulation and the thickness needed to get that R-value. Also, add this 
statement explaining R-values: ``The higher the R-value, the greater the 
insulating power. Ask your seller for the fact sheet on R-values.''
    (b) If your ad gives a price, you must give the type of insulation, 
the R-value

[[Page 469]]

at a specific thickness, the statement explaining R-values in paragraph 
(a) of this section, and the coverage area for that thickness. If you 
give the price per square foot, you do not have to give the coverage 
area.
    (c) If your ad gives the thickness of your insulation, you must give 
its R-value at that thickness and the statement explaining R-values in 
paragraph (a) of this section.
    (d) If your ad compares one type of insulation to another, the 
comparison must be based on the same coverage areas. You must give the 
R-value at a specific thickness for each insulation, and the statement 
explaining R-values in paragraph (a) of this section. If you give the 
price of each insulation, you must also give the coverage area for the 
price and thickness shown. However, if you give the price per square 
foot, you do not have to give the coverage area.
    (e) If your ad gives the R-value of urea-based foam insulation, you 
must add this statement: ``Foam insulation shrinks after it is 
installed. This shrinkage may significantly reduce the R-value you 
get.'' However, you can lower your product's R-value to account for 
shrinkage. To do this, you must have reliable scientific proof of the 
extent of shrinkage for your product and of its effect on R-value. If 
you lower your product's R-value, you need not make the above statement.
    (f) The affirmative disclosure requirements in Sec.  460.18 do not 
apply to ads on television.

[44 FR 50242, Aug. 27, 1979, as amended at 51 FR 39651, Oct. 30, 1986]



Sec.  460.19  Savings claims.

    (a) If you say or imply in your ads, labels, or other promotional 
materials that insulation can cut fuel bills or fuel use, you must have 
a reasonable basis for the claim. For example, if you say that 
insulation can ``slash'' or ``lower'' fuel bills, or that insulation 
``saves money,'' you must have a reasonable basis for the claim. Also, 
if you say that insulation can ``cut fuel use in half,'' or ``lower fuel 
bills by 30%,'' you must have a reasonable basis for the claim.
    (b) If you say or imply in your ads, labels, or other promotional 
materials that insulation can cut fuel bills or fuel use, you must make 
this statement about savings: ``Savings vary. Find out why in the 
seller's fact sheet on R-values. Higher R-values mean greater insulating 
power.''
    (c) If you say or imply that a combination of products can cut fuel 
bills or use, you must have a reasonable basis for the claim. You must 
make the statement about savings in paragraph (b) of this section. Also, 
you must list the combination of products used. They may be two or more 
types of insulation; one or more types of insulation and one or more 
other insulating products, like storm windows or siding; or insulation 
for two or more parts of the house, like the attic and walls. You must 
say how much of the savings came from each product or location. If you 
cannot give exact or approximate figures, you must give a ranking. For 
instance, if your ad says that insulation and storm doors combined to 
cut fuel use by 50%, you must say which one saved more.
    (d) If your ad or other promotional material is covered by Sec.  
460.18 (a), (b), (c), or (d), and also makes a savings claim, you must 
follow the rules in Sec. Sec.  460.18 and 460.19. However, you need not 
make the statement explaining R-value in Sec.  460.18(a).
    (e) Manufacturers are liable if they do not have a reasonable basis 
for their savings claims before the claim is made. If you are not a 
manufacturer, you are liable only if you know or should know that the 
manufacturer does not have a reasonable basis for the claim.
    (f) Keep records of all data on savings claims for at least three 
years. For the records showing proof for claims, the three years will 
begin again each time you make the claim. Federal Trade Commission staff 
members can check these records at any time, but they must give you 
reasonable notice first.
    (g) The affirmative disclosure requirements in Sec.  460.19 do not 
apply to ads on television.

[44 FR 50242, Aug. 27, 1979, as amended at 51 FR 39651, Oct. 30, 1986]



Sec.  460.20  R-value per inch claims.

    In labels, fact sheets, ads, or other promotional materials, do not 
give the

[[Page 470]]

R-value for one inch or the ``R-value per inch'' of your product. There 
are two exceptions:
    (a) You can do this if you suggest using your product at a one-inch 
thickness.
    (b) You can do this if actual test results prove that the R-values 
per inch of your product does not drop as it gets thicker.

You can list a range of R-value per inch. If you do, you must say 
exactly how much the R-value drops with greater thickness. You must also 
add this statement: ``The R-value per inch of this insulation varies 
with thickness. The thicker the insulation, the lower the R-value per 
inch.''



Sec.  460.21  Government claims.

    Do not say or imply that a government agency uses, certifies, 
recommends, or otherwise favors your product unless it is true. Do not 
say or imply that your insulation complies with a governmental standard 
or specification unless it is true.



Sec.  460.22  Tax claims.

    Do not say or imply that your product qualifies for a tax benefit 
unless it is true.



Sec.  460.23  Other laws, rules, and orders.

    (a) If an outstanding FTC Cease and Desist Order applies to you but 
differs from the rules given here, you can petition to amend to order.
    (b) State and local laws and regulations that are inconsistent with, 
or frustrate the purposes of, the provisions of this regulation are 
preempted. However, a State or local government may petition the 
Commission, for good cause, to permit the enforcement of any part of a 
State or local law or regulation that would be preempted by this 
section.
    (c) The Commission's three-day cooling-off rule stays in force.



Sec.  460.24  Stayed or invalid parts.

    If any part of this regulation is stayed or held invalid, the rest 
of it will stay in force.

                    Appendix to Part 460--Exemptions

    Section 18(g)(2) of the Federal Trade Commission Act, 15 U.S.C. 
57a(g)(2), authorizes the Commission to exempt a person or class of 
persons from all or part of a trade regulation rule if the Commission 
finds that application of the rule is not necessary to prevent the 
unfair or deceptive acts or practices to which the rule relates. In 
response to petitions from industry representatives, the Commission has 
granted exemptions from specific requirements of 16 CFR part 460 to 
certain classes of sellers. Some of these exemptions are conditioned 
upon the performance of alternative actions. The exemptions are limited 
to specific sections of part 460. All other requirements of part 460 
apply to these sellers. The exemptions are summarized below. For an 
explanation of the scope and application of the exemptions, see the 
formal Commission decisions in the Federal Register cited at the end of 
each exemption.
    (a) Manufacturers of perlite insulation products that have an 
inverse relationship between R-value and density or weight per square 
foot are exempted from the requirements in Sec. Sec.  460.12(b)(2) and 
460.13(c)(1) that they disclose minimum weight per square foot for R-
values listed on labels and fact sheets. This exemption is conditioned 
upon the alternative disclosure in labels and fact sheets of the maximum 
weight per square foot for each R-value required to be listed. 46 FR 
22179 (1981).
    (b) Manufacturers of rigid, flat-roof insulation products used in 
flat, built-up roofs are exempted from the requirements in Sec.  460.12 
that they label these home insulation products. 46 FR 22180 (1981).
    (c) New home sellers are exempted from:
    (1) the requirement in Sec.  460.18(a) that they disclose the type 
and thickness of the insulation when they make a representation in an 
advertisement or other promotional material about the R-value of the 
insulation in a new home;
    (2) the requirement that they disclose in an advertisement or other 
promotional material the R-value explanatory statement specified in 
Sec.  460.18(a) or the savings explanatory statement specified in Sec.  
460.19(b), conditioned upon the new home sellers alternatively 
disclosing the appropriate explanatory statement in the sales contract 
along with the disclosures required by Sec.  460.16;
    (3) the requirement that they make the disclosures specified in 
Sec.  460.19(c) if they claim that insulation, along with other products 
in a new home, will cut fuel bills or fuel use; and
    (4) the requirement that they include the reference to fact sheets 
when they must disclose the R-value explanatory statement or the savings 
claim explanatory statement under Sec.  460.18(a) or Sec.  460.19(b), 
respectively.

[[Page 471]]

    The exemptions for new home sellers also apply to home insulation 
sellers other than new home sellers when they participate with a new 
home seller to advertise and promote the sale of new homes, provided 
that the primary thrust of the advertisement or other promotional 
material is the promotion of new homes, and not the promotion of the 
insulation product. 48 FR 31192 (1983).

[61 FR 13666, Mar. 28, 1996]

[[Page 472]]



    SUBCHAPTER E_RULES, REGULATIONS, STATEMENT OF GENERAL POLICY OR 
 INTERPRETATION AND EXEMPTIONS UNDER THE FAIR PACKAGING AND LABELING ACT





PART 500_REGULATIONS UNDER SECTION 4 OF THE FAIR PACKAGING AND 
LABELING ACT--Table of Contents




Sec.
500.1 Scope of the regulations of this part.
500.2 Terms defined.
500.3 Prohibited acts, coverage, general labeling requirements, 
          exemption procedures.
500.4 Statement of identity.
500.5 Name and place of business of manufacturer, packer or distributor.
500.6 Net quantity of contents declaration, location.
500.7 Net quantity of contents, method of expression.
500.8 Units of weight or mass and measure.
500.9 Units of weight or mass, how expressed.
500.10 Units of fluid measure, how expressed.
500.11 Measurement of commodity length, how expressed.
500.12 Measurement of commodities by length and width, how expressed.
500.13 Measurement of commodities by area measure only, how expressed.
500.14 Statements of cubic measure and dry measure.
500.15 Units of count, more than one ply.
500.16 Measurement of container type commodities, how expressed.
500.17 Fractions.
500.18 SI metric prefixes.
500.19 Conversion of SI metric quantities to inch/pound quantities and 
          inch/pound quantities to SI metric quantities.
500.20 Conspicuousness.
500.21 Type size in relationship to the area of the principal display 
          panel.
500.22 Abbreviations.
500.23 Expression of net quantity of contents in SI Metric units.
500.24 Supplemental statements.
500.25 Net quantity, average quantity, permitted variations.
500.26 Representations of servings, uses, applications.
500.27 Multiunit packages.
500.28 Variety packages.
500.29 Combination packages.

    Authority: 15 U.S.C. 1453, 1454, 1455.

    Source: 59 FR 1872, Jan. 12, 1994, unless otherwise noted.



Sec.  500.1  Scope of the regulations of this part.

    The regulations in this part establish requirements for labeling of 
consumer commodities as hereinafter defined with respect to identity of 
the commodity; the name and place of business of the manufacturer, 
packer, or distributor; the net quantity of contents; and net quantity 
of servings, uses, or applications represented to be present.



Sec.  500.2  Terms defined.

    As used in this part, unless the context otherwise specifically 
requires:
    (a) The term Act means the ``Fair Packaging and Labeling Act'' (Pub. 
L. 89-755, approved Nov. 3, 1966; 80 Stat. 1296 et seq.; 15 U.S.C. 1451 
et seq., as amended by Public Law 102-329, August 3, 1992).
    (b) The term regulation or regulations means regulations promulgated 
by the Commission pursuant to sections 4, 5, and 6 of the Act (15 U.S.C. 
1453, 1454, 1455).
    (c) The term consumer commodity or commodity means any article, 
product, or commodity of any kind or class which is customarily produced 
or distributed for sale through retail sales agencies or 
instrumentalities for consumption by individuals, or use by individuals 
for purposes of personal care or in the performance of services 
ordinarily rendered within the household, and which usually is consumed 
or expended in the course of such consumption or use. For purposes of 
the regulations in this part the term consumer commodity does not 
include any food, drug, device or cosmetic as defined by section 201 of 
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); any meat or 
meat product, poultry or poultry product, or tobacco or tobacco product; 
any commodity subject to packaging or labeling requirements imposed by 
the Administrator of the Environmental Protection Agency pursuant to the 
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et 
seq.); any commodity subject to

[[Page 473]]

the provisions of the eighth paragraph under the heading ``Bureau of 
Animal Industry'' of the Virus-Serum-Toxin Act (21 U.S.C. 151-157); any 
beverage subject to or complying with packaging or labeling requirements 
imposed under the Federal Alcohol Administration Act (27 U.S.C. 201 et 
seq.); any commodity subject to the provisions of the Federal Seed Act 
(7 U.S.C. 1551-1610).
    (d) The term package means any container or wrapping in which any 
consumer commodity is enclosed for use in the delivery or display of 
that commodity to retail purchasers. For purposes of the regulations in 
this part the term package does not include shipping containers or 
wrappings used solely for the transportation of any consumer commodity 
in bulk or in quantity to manufacturers, packers, or processors, or to 
wholesale or retail distributors thereof unless used in retail display; 
shipping containers or outer wrappings used by retailers to ship or 
deliver any commodity to retail customers if such containers and 
wrappings bear no printed matter pertaining to any particular commodity; 
or containers subject to the provisions of the Act of August 3, 1912 (37 
Stat. 250, as amended; 15 U.S.C. 231-233), the Act of March 4, 1915 (38 
Stat. 1186, as amended; 15 U.S.C. 234-236); or transparent wrappers or 
containers which do not bear written, printed, or graphic matter 
obscuring any part of the label information required by this part.
    (e) The term label means any written, printed, or graphic matter 
affixed to or appearing upon any consumer commodity or affixed to or 
appearing upon a package containing any consumer commodity; except that:
    (1) An inspector's tag or other nonpromotional matter affixed to or 
appearing upon a consumer commodity shall not be deemed to be a label 
requiring the repetition of label information required by this part, and
    (2) For the purposes of the regulations in this part the term label 
does not include written, printed, or graphic matter affixed to or 
appearing upon commodities, or affixed to or appearing upon containers 
or wrappers for commodities sold or distributed to industrial or 
institutional users.
    (f) The term person includes any firm, corporation or associations.
    (g) The term commerce means:
    (1) Commerce between any State, the District of Columbia, the 
Commonwealth of Puerto Rico, or any territory or possession of the 
United States, and any place outside thereof, and
    (2) Commerce within the District of Columbia or within any territory 
or possession of the United States, not organized with a legislature, 
but shall not include exports to foreign countries.
    (h) The term principal display panel means that part of a label that 
is most likely to be displayed, presented, shown, or examined under 
normal and customary conditions of display for retail sale. The 
principal display panel must be large enough to accommodate all the 
mandatory label information required to be placed thereon by this part 
without obscuring designs, vignettes, or crowding. This definition does 
not preclude utilization of alternate principal display panels on a 
label of a package, but alternate principal display panels must 
duplicate the information required to be placed on the principal display 
panel by this part. This definition does not preclude utilization of the 
container closure as the surface bearing the principal display panel if 
that label location is the one most likely to be displayed, presented, 
shown, or examined under normal and customary conditions of display for 
retail sale. The principal display panel of a label appearing on a 
cylindrical surface is that 40 percent of the circumference which is 
more likely to be displayed, presented, shown, or examined under normal 
and customary conditions of display for retail sale. The principal 
display panel of a consumer commodity marketed in a decorative type 
container, or a container having a capacity of \1/4\ ounce (7.4 mL) or 
less, may be considered to be a tear-away tag or tape affixed to the 
container and bearing the mandatory label information as required by 
this part, but the type size of the net quantity of contents statement 
shall be governed by the dimensions of the container itself.

[[Page 474]]

The principal display panel of a consumer commodity marketed on a 
display card to which the immediate container of the commodity is 
affixed may be considered to be the display panel of the card, and the 
type size of the net quantity of contents statement is governed by the 
dimensions of the display card.
    (i) The term random package means a package which is one of a lot, 
shipment, or delivery of packages of the same consumer commodity with 
varying weights, that is, packages with no fixed weight pattern.
    (j) The term SI metric refers to units belonging to the 
International System of Units (abbreviated ``SI'' from the French, Le 
Systeme International d'Unites), as interpreted or modified for use in 
the United States by the Secretary of Commerce. They include the SI 
units (together with their multiples and submultiples) as well as other 
metric units (e.g., the liter) that are accepted for use with the SI 
units because of their practical importance.
    (k) The term customary inch/pound refers to units belonging to the 
system of units used in the United States based on or derived from the 
ounce, pound, and ton for weight; the inch, foot, yard, and mile for 
length; the fluid ounce, pint, quart, and gallon for volume; and dry 
pint, dry quart, peck, and bushel for dry measure.
    (l) The term ``e'' mark refers to the symbol ``e'' used in 
connection with the quantity declarations on labels of some consumer 
commodities marketed primarily in the European Community (EC). The ``e'' 
mark constitutes a representation by the packer or importer that the 
package to which it is applied has been filled in accordance with the 
average system of quantity specified by the EC. The average system is a 
method of declaring package fill in the EC and other countries of the 
world, including the United States.



Sec.  500.3  Prohibited acts, coverage, general labeling requirements, 
exemption procedures.

    (a) No person engaged in the packaging or labeling of any consumer 
commodity for distribution in commerce, and no person (other than a 
common carrier for hire, or a freight forwarder for hire) engaged in the 
distribution in commerce of any packaged or labeled consumer commodity, 
shall distribute or cause to be distributed in commerce any such 
commodity if such commodity is contained in a package, or if there is 
affixed to that commodity a label, which does not conform to the 
provisions of the Act and of the regulations in this part.
    (b) Persons engaged in business as wholesale or retail distributors 
of consumer commodities shall be subject to the Act and the regulations 
in this part to the extent that such persons are engaged in the 
packaging or labeling of consumer commodities, or prescribe or specify 
by any means the manner in which such consumer commodities are packaged 
or labeled.
    (c) Each packaged or labeled consumer commodity, unless it has been 
exempted through proceedings under section 5(b) of the Act (15 U.S.C. 
1454(b)), shall, upon being prepared for distribution in commerce or for 
sale at retail, and before being distributed in commerce or offered for 
sale at retail, be labeled in accordance with the requirements of the 
Act and the regulations in this part.
    (d) Each packaged or labeled consumer commodity, unless it has been 
exempted through proceedings under section 5(b) of the Act, shall bear a 
label specifying the identity of the commodity; the name and place of 
business of the manufacturer, packer, or distributor; the net quantity 
of contents; and the net quantity per serving, use or application, where 
there is a label representation as to the number of servings, uses, or 
applications obtainable from the commodity.
    (e) Regulations will be promulgated by the Commission exempting 
particular consumer commodities from one or more of the requirements of 
section 4 of the Act and the regulations thereunder to the extent and 
under such conditions as are consistent with the declared policy of the 
Act whenever the Commission finds that, because of the nature, form, or 
quantity of the particular consumer commodity, or for other good and 
sufficient reasons, full compliance with all the requirements otherwise 
applicable is impracticable or is not necessary for the adequate

[[Page 475]]

protection of consumers. Proceedings for the promulgation of such 
exempting regulations may be commenced by the Commission upon its own 
initiative or pursuant to petition filed with the Secretary by any 
interested person or group stating reasonable grounds for the proposed 
exemption, pursuant to Sec.  1.15 of this chapter of the Commission's 
general procedures.



Sec.  500.4  Statement of identity.

    (a) The principal display panel of a consumer commodity shall bear a 
specification of the identity of the commodity.
    (b) Such specification of identity shall comprise a principal 
feature of the principal display panel, shall be in such type size and 
so positioned as to render it easily read and understood by the 
consumer, and shall be in lines generally parallel to the base on which 
the package or commodity rests as it is designed to be displayed.
    (c) Such specification of identity shall be in terms of:
    (1) The name now or hereafter specified in or required by any 
applicable Federal law or regulation; or in the absence thereof,
    (2) The common or usual name of the commodity; or in the absence 
thereof,
    (3) The generic name or in other appropriately descriptive terms 
such as a specification which includes a statement of function.
    (d) The specification of identity shall not be false, misleading, or 
deceptive in any respect. Ingredients or components which are not 
present in the commodity in a substantial or significantly effective 
amount may not be mentioned in the specification of identity; except 
that a component present in a formulation in substantial and effective 
amounts, but not present in the final product due to conversion or 
transformation into a different entity (which different entity is 
present in the final product), may be mentioned in the specification of 
identity.



Sec.  500.5  Name and place of business of manufacturer, packer or distributor.

    (a) The label of a consumer commodity shall specify conspicuously 
the name and place of business of the manufacturer, packer, or 
distributor. Where the consumer commodity is not manufactured by the 
person whose name appears on the label, the name shall be qualified by a 
phrase that reveals the connection such person has with such commodity; 
such as ``Manufactured for ------,'' ``Distributed by ------,'' or any 
other wording that expresses the facts.
    (b) The requirement for declaration of the manufacturer, packer, or 
distributor shall in the case of a corporation be deemed to be satisfied 
only by the actual corporate name, which may be preceded or followed by 
the name of the particular division of the corporation. In the case of 
an individual, partnership, or association, the name under which the 
business is conducted shall be used.
    (c) The statement of the place of business shall include the street 
address, city, State, and Zip Code; however, the street address may be 
omitted if it is shown in a current city directory or telephone 
directory.
    (d) If a person manufactures, packs, or distributes a consumer 
commodity at a place other than his principal place of business, the 
label may state the principal place of business in lieu of the actual 
place where such consumer commodity was manufactured or packed or is to 
be distributed, unless such statement would be misleading.
    (e) Standard abbreviations may be used in complying with the 
requirements of this section.



Sec.  500.6  Net quantity of contents declaration, location.

    (a) The label of a consumer commodity shall bear a declaration of 
the net quantity of contents separately and accurately stated on the 
principal display panel.
    (b) The declaration of net quantity shall appear as a distinct item 
on the principal display panel, shall be separated (by at least a space 
equal to the height of the lettering used in the declaration) from other 
printed label information appearing above or below the declaration and, 
shall not include any term qualifying a unit of weight or mass, measure, 
or count such as ``jumbo quart,'' ``giant liter,'' ``full gallon,'' 
``when packed,'' ``minimum,'' or

[[Page 476]]

words of similar import. The declaration of net quantity shall be 
separated (by at least a space equal to twice the width of the letter 
``N'' of the style of type used in the net quantity statement) from 
other printed label information appearing to the left or right of the 
declaration. However, the ``e'' mark shall not be considered to be a 
qualifying word or phrase and may be used as part of the statement of 
the net quantity of contents where warranted. When used, the ``e'' mark 
shall be at least 3 millimeters (approximately 1/8 in) in height. The 
declaration of net quantity of contents shall be placed on the principal 
display panel within the bottom 30 percent of the area of the label 
panel in lines generally parallel to the base on which the package or 
commodity rests as it is designed to be displayed: Provided, that:
    (1) On consumer commodities having a principal display panel of 5 
square inches (32.2 cm\2\) or less, the requirement for placement within 
the bottom 30 percent of the area of the label panel shall not apply 
when the declaration of net quantity of contents meets the other 
requirements of this part, and
    (2) The requirements as to separation, location, and type size, 
specified in this part are waived with respect to variety and 
combination packages as defined in this part.



Sec.  500.7  Net quantity of contents, method of expression.

    The net quantity of contents shall be expressed in terms of weight 
or mass, measure, numerical count, or a combination of numerical count 
and weight or mass, size, or measure so as to give accurate information 
regarding the net quantity of contents thereof, and thereby facilitate 
value comparisons by consumers. The net quantity of contents statement 
shall be in terms of fluid measure if the commodity is liquid, or in 
terms of weight or mass if the commodity is solid, semi-solid, or 
viscous, or a mixture of solid and liquid. If there is a firmly 
established general consumer usage and trade custom of declaring the 
contents of a liquid by weight or mass, or a solid, semi-solid, or 
viscous product by fluid measure, numerical count, and/or size, or (as 
in the case of lawn and plant care products) by cubic measure, it may be 
used, when such declaration provides sufficient information to 
facilitate value comparisons by consumers. The declaration may appear in 
more than one line of print or type.



Sec.  500.8  Units of weight or mass and measure.

    (a) Statements of weight or mass shall be in terms of both 
avoirdupois pound and ounce and SI metric kilograms, grams, or 
milligrams. (Examples of avoirdupois/metric declarations: ``Net Wt 15 oz 
(425 g)'' or ``Net Wt 1\1/2\ lbs (680 g)'' or `` 2.5 oz (70.8 g)''; 
examples of metric/avoirdupois declarations: ``Net Mass 425 g (15 oz)'' 
or ``Net Mass 680 g (1\1/2\ lbs)'' or ``100 g e (3.5 oz).'')
    (b) Statements of fluid measure shall be in terms of both the U.S. 
gallon of 231 cubic inches and quart, pint, and fluid ounce subdivisions 
thereof and SI metric liters or milliliters and shall (except in the 
case of petroleum products, for which the declaration shall express the 
volume at 60 [deg] Fahrenheit (15.6 [deg] Celsius)) express the volume 
at 68 [deg] Fahrenheit (20 [deg] Celsius). (Examples of gallon/metric 
declarations: ``Net 12 fl oz (354 mL)'' or ``Net Contents 1 gal (3.78 
L)'' or ``8 fl oz (236 mL)''; examples of metric/gallon declarations: 
``Net 500 mL (1.05 pt)'' or ``Net Contents 1 L (1.05 qt).'')
    (c) Statements of linear measure shall be in terms of both yards, 
feet, and inches and SI metric meters, centimeters, or millimeters.
    (d) Statements of measure of area shall be in terms of both square 
yards, square feet, and square inches and SI metric square meters, 
square decimeters, square centimeters, or square millimeters.
    (e) Statements of dry measure shall be in terms of both the U.S. 
bushel of 2,150.42 cubic inches and peck, dry quart, and dry pint 
subdivisions thereof and SI metric liters or milliliters.
    (f) Statements of cubic measure shall be in terms of both cubic 
yard, cubic foot, and cubic inch and SI metric cubic meters, cubic 
decimeters, or cubic centimeters.

[[Page 477]]



Sec.  500.9  Units of weight or mass, how expressed.

    (a) The term net weight or net mass may be used in stating the net 
quantity of contents in terms of weight or mass. However, where the term 
``net weight'' or ``net mass'' is not used, the quantity of contents 
shall always disclose the net quantity of contents. For example: ``453 g 
(1 lb)'' or ``Net Wt 1 lb (453 g)'' or ``Net Mass 453 g (1 lb)''.
    (b) With the exception of random packages, the statement of net 
quantity of contents in terms of avoirdupois weight shall be expressed 
as follows:
    (1) If less than 1 pound, in terms of ounces. (Examples: ``Net 
Weight 12 oz. (340 g)'' or ``Net Mass 340 g (12 oz)''.)
    (2) If at least 1 pound but less than 4 pounds, in whole pounds, 
with any remainder in ounces or common or decimal fractions of the 
pound, except that it shall be optional to include an immediately 
adjacent additional expression of net quantity in terms of ounces.

(Examples: ``Net Wt. 1 lb. 8 oz. (680 g)'' or ``Net Wt. 1.5 lb./24 oz. 
(680 g)'' or ``24 oz. (1\1/2\ lb.) 680 g''.)

    (3) If 4 pounds or more, in terms of whole pounds, with any 
remainder in terms of ounces or common or decimal fractions of the 
pound, except that it shall be optional to include an immediately 
adjacent additional expression of net quantity in terms of ounces. 
(Examples: ``Net Weight 5 pounds 4 ounces (2.38 kg)'' or ``Net Mass 2.38 
kg (5 lbs 4 oz)'' or ``Net Wt. 5\1/4\ lbs. (2.38 kg)'' or ``Net Mass 
2.38 kg (5\1/4\ lbs.)'' or ``Net Wt. 5.25 lbs. (2.38 kg) or ``Net Mass 
2.38 kg (5.25 lbs)''.)
    (c) If the net quantity of contents declaration appears on a random 
package it may, when the net weight exceeds 1 pound, be expressed in 
terms of pounds and decimal fractions of the pound carried out to not 
more than three decimal places. When the net weight does not exceed 1 
pound, the declaration on the random package may be in terms of decimal 
fractions of the pound in lieu of ounces. (Examples: ``Net Wt. 0.75 
lb.'' and ``Net Weight 1.05 pounds.'') Such decimal declaration shall be 
exempt from the type size and placement requirements of section 4(a) of 
the Act if the accurate statement of net weight is presented prominently 
and conspicuously on the principal display panel of the package. The net 
quantity of contents declaration on a random package is not required to, 
but may include a statement in terms of the SI metric system carried out 
to not more than 3 decimal places.
    (d) It is sufficient to distinguish avoirdupois ounce from fluid 
ounce through association of terms. (Examples: ``Net Wt. 6 oz.'' vs. ``6 
fl. oz.'' or ``Net Contents 6 fl. oz.'')



Sec.  500.10  Units of fluid measure, how expressed.

    (a) Use of the terms ``net'' or ``net contents'' is optional.
    (b) Declaration of net quantity of contents in terms of fluid 
measure shall be identified as such in each instance and the statement 
of U.S. gallon of 231 cubic inches and quart, pint, and fluid ounce 
subdivisions thereof shall be expressed as follows:
    (1) If less than 1 pint, in terms of fluid ounces. (Example: ``Net 
Contents 8 fl. oz. (236 mL)'' or ``Net Contents 236 mL (8 fl. oz.)''.)
    (2) If at least 1 pint but less than 1 gallon, in terms of the 
largest whole unit (quarts, quarts and pints or pints, as appropriate), 
with any remainder in terms of fluid ounces or common or decimal 
fractions of the pint or quart, except that it shall be optional to 
include an immediately adjacent additional expression of net quantity in 
terms of fluid ounces. (Examples: ``1 qt. (946 mL)'' or ``Net contents 1 
qt. 1 pt. 8 oz./56 fl. oz. (1.65 L)'', but not in terms of quart and 
ounce such as ``1 quart 24 ounces (1.65 L)''.)
    (3) If 1 gallon or more, in terms of the largest whole unit (gallons 
followed by common or decimal fractions of a gallon or by the next 
smaller whole unit or units viz, quarts and pints) with any remainder in 
terms of fluid ounces or common or decimal fractions of the pint or 
quart, except that it shall be optional to include an immediately 
adjacent additional expression of net quantity in terms of fluid ounces.

(Examples: ``Net contents 2\1/2\ gal. (9.46 L)'', ``Contents 2.5 gal. 
(9.46 L)'', or ``Net contents 2 gallons 2 quarts (9.46 L)'' but not as 
``2 gallons 4 pints (9.46 L)''.)

[[Page 478]]



Sec.  500.11  Measurement of commodity length, how expressed.

    Declaration of net quantity in terms of yards, feet, and inches 
shall be expressed as follows:
    (a) If less than 1 foot, in terms of inches and fractions thereof.
    (b) If 1 foot or more, in terms of the largest whole unit (a yard or 
foot) with any remainder in terms of inches or common or decimal 
fractions of the foot or yard, except that it shall be optional to 
express the length in the preceding manner followed by a statement of 
the length in terms of inches.



Sec.  500.12  Measurement of commodities by length and width, how expressed.

    For bidimensional commodities (including roll-type commodities) 
measured in terms of commodity length and width, the declaration of net 
quantity of contents shall be expressed in the following manner:
    (a) The declaration of net quantity for bidimensional commodities 
having a width of more than 4 inches (10.1 cm) shall:
    (1) When the commodity has an area of less than 1 square foot (929 
cm\2\) be expressed in terms of length and width in linear measure. The 
customary inch/pound statement is to be expressed in inches and 
fractions thereof.
    (2) When the commodity has an area of 1 square foot (929 cm\2\) or 
more, but less than 4 square feet (37.1 dm\2\), be expressed in terms of 
area, followed by the length and width. The customary inch/pound 
statement of area is to be expressed in square inches with length and 
width expressed in the largest whole unit (yard or foot) with any 
remainder in inches or common or decimal fractions of the yard or foot 
except that a dimension of less than 2 feet (60.9 cm) may be stated in 
inches. Commodities consisting of usable individual units (e.g., paper 
napkins) while requiring a declaration of unit area need not declare the 
total area of all such individual units.
    (3) When the commodity has an area of 4 square feet (37.1 dm\2\) or 
more, be expressed in terms of area, followed by the length and width. 
The customary inch/pound statement of area is to be expressed in square 
feet with the length and width expressed in the largest whole units 
(yards or feet) with any remainder in terms of inches or common or 
decimal fractions of the foot or yard except that a dimension of less 
than 2 feet (60.96 cm) may be stated in inches.
    (4) For any commodity for which the quantity of contents is required 
by paragraph (a) (2) or (3) of this section to include a declaration of 
the linear dimensions, the quantity of contents, in addition to being 
declared in the manner prescribed by the appropriate provisions of this 
regulation, may also include, after the customary inch/pound statement 
of the linear dimensions of the largest unit of measurement, a 
parenthetical declaration of the linear dimensions of said commodity in 
terms of inches.

    (Example: ``25 sq. ft. (12 in. x 8.33 yd.) (12 in. x 300 in.) 42.32 
m\2\ (30.4 cm x 7.62 m)''.)

    (b) For bidimensional commodities having a width of 4 inches (10.16 
cm) or less, the declaration of net quantity shall be expressed in terms 
of width and length in linear measure. The customary inch/pound 
statement of width shall be expressed in terms of linear inches and 
fractions thereof, and length shall be expressed in the largest whole 
unit (yard or foot) with any remainder in terms of the common or decimal 
fractions of the yard or foot, except that it shall be optional to 
express the length in the largest whole unit followed by a statement of 
length in inches or to express the length in inches followed by a 
statement of length in the largest whole unit.

    (Example: ``2 inches x 10 yards (5.08 cm x 9.14 m)'', ``2 inches x 
10 yards (360 inches) 5.08 cm x 9.14 m'', or ``2 inches x 360 inches (10 
yards) 5.08 cm x 9.14 m''.)



Sec.  500.13  Measurement of commodities by area measure only, how expressed.

    For commodities measured in terms of area measure only declaration 
of net quantity in terms of square yards, square feet, and square inches 
shall be expressed in the following manner:
    (a) If less than 1 square foot (929 cm\2\), in terms of square 
inches and fractions thereof.

[[Page 479]]

    (b) If at least 1 square foot (929 cm\2\) but less than 4 square 
feet (37.1 dm\2\), in terms of square feet with any remainder in terms 
of square inches or common or decimal fractions of the square foot.
    (c) If 4 square feet (37.1 dm\2\) or more, in terms of the largest 
appropriate whole unit (square yards, square yards and square feet, or 
square feet) with any remainder in terms of square inches or common or 
decimal fractions of the square foot or square yard.



Sec.  500.14  Statements of cubic measure and dry measure.

    Statements of cubic measure and dry measure shall be expressed in 
terms most appropriate to the providing of accurate information as to 
the net quantity of contents, and to the facilitating of value 
comparisons by consumers. When the content declaration on a commodity 
sold in compressed form is stated in terms of cubic measure there may 
also be a statement indicating the amount of material from which the 
final product was compressed. Such statement shall not exceed the actual 
amount of material that can be recovered.



Sec.  500.15  Units of count, more than one ply.

    If the commodity is in distinct usable units made up of one or more 
components or ply, the statement of net quantity of contents shall (in 
addition to complying with the requirements of linear and area 
measurement declaration for each unit as specified in Sec.  500.12) 
include the number of ply and the total number of usable units.

    (Example: ``100 2-ply facial tissues, 8\1/2\ inches x 10 inches'' 
(21.5 x 25.4 cm).)


For the purposes of this section, roll type commodities (e.g. paper 
towels), irrespective of perforations, shall not be considered to be 
usable units, and shall be labeled in terms of total area measurement 
and the number of ply. Such area measurement, however, shall be 
supplemented by a count statement and the dimensions of a single unit.



Sec.  500.16  Measurement of container type commodities, how expressed.

    Notwithstanding other provisions of this part 500 of the regulations 
pertaining to the expression of net quantity of contents by measurement, 
commodities designed and sold at retail to be used as containers for 
other materials or objects, such as bags, cups, boxes, and pans, shall 
be labeled in accordance with the following paragraphs:
    (a) The declaration of net quantity for container commodities shall 
be expressed as follows:
    (1) For bag type commodities, in terms of count followed by linear 
dimensions of the bag (whether packaged in a perforated roll or 
otherwise) Net quantity of contents in terms of feet and inches shall be 
expressed as follows:
    (i) When the unit bag is characterized by two dimensions because of 
the absence of a gusset, the width and length will be expressed in 
inches, except that a dimension of 2 feet or more will be expressed in 
feet with any remainder in terms of inches or common or decimal 
fractions of the foot.

    (Example: ``25 bags, 17 in. x 20 in. (43.1 x 50.8 cm)'' or ``200 
bags, 20 in. x 2 ft. 6 in. (50.8 x 76.2 cm)'', or ``50 bags, 20 in. x 
2\1/2\ ft. (50.8 x 76.2 cm)''.)

    (ii) When the unit bag is gussetted, the dimensions will be 
expressed as width, depth and length in terms of inches except that any 
dimensions of 2 feet or more will be expressed in feet with any 
remainder in terms of inches or the common or decimal fractions of the 
foot.

    (Examples: ``25 bags, 17 in. x 4 in. x 20 in. (43 x 10 x 50 cm)'', 
or ``200 bags, 20 in. x 12 in. x 2\1/2\ ft. (50.8 x 30.4 x 76.2 cm)''.)

    (2) For other square, oblong, rectangular or similarly shaped 
containers, in terms of count followed by length, width, and depth 
except depth need not be listed when less than 2 inches (5.08 cm).

    (Example: ``2 cake pans, 8 in. x 8 in. (20.3 x 20.3 cm)'', or 
``roasting pan, 12 in. x 8 in. x 3 in. (30.4 x 20.3 x 7.62 cm)''.)

    (3) For circular or other generally round shaped containers, except 
cups,

[[Page 480]]

and the like, in terms of count followed by diameter and depth except 
depth need not be listed when less than 2 inches (5.08 cm).

    (Example: ``4 pie pans, 8 in. diameter (20.3 cm)'' or ``2 cake pans, 
8 in. diameter x 4 in. (20.3 x 10.1 cm)''.)

    (b) When the functional use of the container is related by label 
reference in standard terms of measure to the capability of holding a 
specific quantity of substance or class of substances such references 
shall be a part of the net quantity statement and shall specify capacity 
as follows:
    (1) Liquid measure for containers which are intended to be used for 
liquids, semi-solids, viscous materials or mixtures of solids and 
liquids. The customary inch/pound statement of capacity shall be stated 
in terms of the largest whole U.S. gallon of 231 cubic inches, quart, 
pint, or ounce with any remainder in terms of the common or decimal 
fraction of that unit.

    (Example: Freezer Boxes: ``4 boxes, 1 qt. capacity, 6 in. x 6 in. x 
4 in. (946 mL capacity, 15.2 x 15.2 x 10.1 cm)''.)

    (2) Dry measure for containers which are intended to be used for 
solids. The customary inch/pound statement of capacity shall be stated 
in terms of the largest whole U.S. bushel of 2,150.42 cubic inches, 
peck, dry quart, or dry pint with any remainder in terms of the common 
or decimal fraction of that unit.

    (Example: Leaf Bags: ``8 bags, 6 bushel capacity, 4 feet x 5 feet 
(211 L capacity--1.21 m x 1.52 m)''.)

    (3) Where containers are used as liners for other more permanent 
containers, in the same terms as are normally used to express the 
capacity of the more permanent container.

    (Example: Garbage Can Liners: ``10 liners, 2 ft. 6 in. x 3 ft. 1 
in., fits up to 30 gallon cans (76.2 x 93.9 cm, fits up to 113 L 
cans''.)

    (c) Notwithstanding the above requirements, the net quantity 
statement for containers such as cups will be listed in terms of count 
and liquid capacity per unit.

    (Example: ``24 cups, 6 fl. oz. capacity (177 mL)''.)

    (d) For purposes of this section, the use of the terms ``capacity,'' 
``diameter,'' and ``fluid'' is optional.



Sec.  500.17  Fractions.

    (a) SI metric declarations of net quantity of contents of any 
consumer commodity may contain only decimal fractions. Other 
declarations of net quantity of contents may contain common or decimal 
fractions. A common fraction shall be in terms of halves, quarters, 
eighths, sixteenths, or thirty-seconds; except that:
    (1) If there exists a firmly established general consumer usage and 
trade custom of employing different common fractions in the net quantity 
declaration of a particular commodity, they may be employed, and
    (2) If linear measurements are required in terms of yards or feet, 
common fractions may be in terms of thirds. A common fraction shall be 
reduced to its lowest terms; a decimal fraction shall not be carried out 
to more than three places.
    (b) If a statement includes small fractions, smaller variations in 
the actual size or weight of the commodity will be permitted as provided 
in Sec.  500.25, than in cases where the larger fractions or whole 
numbers are used.



Sec.  500.18  SI metric prefixes.

    The following chart indicates SI prefixes that may be used on a 
broad range of consumer commodity labels:

------------------------------------------------------------------------
                                                     Multiplying factor
              Prefix                    Symbol               \1\
------------------------------------------------------------------------
Kilo-............................  k                x 10\3\
Deca-............................  da               x 10
Deci-............................  d                x 10-\1\
Centi-...........................  c                x 10-\2\
Milli-...........................  m                x 10-\3\
Micro-...........................  [mu]             x 10-\6\
------------------------------------------------------------------------
\1\ 10\2\=100; 10\3\=1000; 10-\1\=0.1; 10-\2\=0.01.
Thus, 2 kg=2x1000 g=2000 g, and 3 cm=3x0.01 m=0.03 m.



Sec.  500.19  Conversion of SI metric quantities to inch/pound quantities 
and inch/pound quantities to SI metric quantities.

    (a) For calculating the conversion of SI metric quantities to inch/
pound quantities and inch/pound quantities to metric quantities, the 
factors in the following chart and none others shall be employed:

[[Page 481]]



                 SI Metric Inch/Pound Conversion Factors
------------------------------------------------------------------------
                Inch/pound                             Metric
------------------------------------------------------------------------
                                 Length
------------------------------------------------------------------------
1 mil=25.4 micrometers ([mu]m)*...........  1 micrometer= 0.039370 mil.
1 inch=2.54 cm*...........................  1 millimeter=0.039 370 in.
1 foot=30.48 cm*..........................  1 centimeter=0.393 701 in.
1 yard=0.9144m*...........................  1 meter=3.280 84 ft.
-------------------------------------------
                                  Area
------------------------------------------------------------------------
1 square inch=6.4516 cm\2\*...............  1 square centimeter=0.155
                                             000 in\2\.
1 square foot=929.0304 cm\2\*.............  1 square decimeter=0.107 639
                                             ft\2\.
  =9.290 304 dm\2\........................  1 square meter=10.763 9
                                             ft\2\.
1 square yard=0.836 127 m\2\..............
-------------------------------------------
                           Volume or Capacity
------------------------------------------------------------------------
1 cubic inch=16.3871 cm\3\................  1 cubic centimeter=0.061 023
                                             7 in\3\.
1 cubic foot=0.028 316 8 m\3\.............  1 cubic decimeter=0.035 314
                                             7 ft\3\.
  =2.83 168 dm\3\.........................  1 cubic meter=35.314 7
                                             ft\3\.
1 cubic yard=0.764 555 m\3\...............   =1.307 95 yd\3\.
1 fluid ounce=29.573 5 mL.................  1 milliliter=0.033 814 0
                                             fluid oz.
1 liquid pint=473.177 mL..................  1 liter=1.05669 liquid
                                             quart.
  =0.473 177 L............................  1 liter=0.264 172 gallon.
1 liquid quart=946.353 mL.................  1 dry pint=550.610 5 mL.
  =0.946 353 L............................  1 dry quart=1.101 221 L.
1 gallon=3.785 41 L.......................  1 dry peck=8.809 768 L.
1 bushel=35.2391 L........................
-------------------------------------------
                             Weight or Mass
------------------------------------------------------------------------
1 ounce=28.349 5 g........................  1 milligram=0.000 035 274 0
                                             oz.
1 pound=453.592 g.........................   =0.015 432 4 grain.
  =0.453 592 kg...........................  1 gram=0.035 274 0 oz.
                                            1 kilogram=2.204 62 lb.
------------------------------------------------------------------------
*Exactly.
Note: These conversion factors are given to six significant digits to
  provide such accuracy when necessary.

    (b) The SI metric quantity declaration should be shown in three 
digits except where the quantity is below 100 grams, milliliters, 
centimeters, square centimeters or cubic centimeters, where it can be 
shown in two figures. In either case, any final zero appearing to the 
right of a decimal point need not be shown.

(Examples: ``1 lb (453 g)'' not ``1 lb (453.592 g)''; ``Net Wt. 2 oz (56 
g)'' or ``Net Wt 2 oz (56.6 g)'' not ``Net Wt. 2 oz (56.69 g)''.)



Sec.  500.20  Conspicuousness.

    The statement of net quantity of contents shall appear in 
conspicuous and easily legible boldface type or print in distinct 
contrast (by typography, layout, color, embossing, or molding) to other 
matter on the package; except that a statement of net quantity blown, 
embossed, or molded on a glass or plastic surface is permissible when 
all label information is so formed on the surface.



Sec.  500.21  Type size in relationship to the area of the principal display panel.

    (a) The statement of net quantity of contents shall be in letters 
and numerals in a type size established in relationship to the area of 
the principal display panel of the package or commodity and shall be 
uniform for all packages or commodities of substantially the same size. 
For this purpose, ``area of the principal display panel'' means the area 
of the side or surface that bears the principal display panel, exclusive 
of tops, bottoms, flanges at tops and bottoms of cans, and shoulders and 
necks of bottles and jars. This area shall be:
    (1) In the case of a rectangular package or commodity where one 
entire side properly can be considered to be a principal display panel 
side, the product of the height times the width of that side;
    (2) In the case of a cylindrical or nearly cylindrical container or 
commodity, 40 percent of the product of the height of the container or 
commodity times the circumference; and
    (3) In the case of any otherwise shaped container or commodity, 40 
percent of the total surface of the container or commodity: Provided, 
however, that where such container or commodity presents an obvious 
``principal display panel'' such as the top of a triangular or oval 
shaped container, the area shall consist of the entire top surface.
    (b) With area of principal display panel defined as above, the type 
size in relationship to area of that panel shall comply with the 
following specifications:
    (1) Not less than \1/16\ inch (1.5 mm) in height on packages the 
principal display panel of which has an area of 5 square inches or (32.2 
cm \2\) less.
    (2) Not less than \1/8\ inch (3.1 mm) in height on packages the 
principal display panel of which has an area of more than 5 (32.2 cm 
\2\) but not more than 25 square inches (161 cm \2\).

[[Page 482]]

    (3) Not less than \3/16\ inch (4.7 mm) in height on packages the 
principal display panel of which has an area of more than 25 (161 cm 
\2\) but not more than 100 square inches (6.45 dm \2\).
    (4) Not less than \1/4\ inch (6.35 mm) in height on packages the 
principal display panel of which has an area of more than 100 square 
inches (6.45 dm \2\), except not less than \1/2\ (12.7 mm) inch in 
height if the area is more than 400 square inches (25.8 dm \2\).
    (c) Where the statement of net quantity of contents is blown, 
embossed, or molded on a glass or plastic surface rather than by 
printing, typing, or coloring, the lettering sizes specified in 
paragraph (b) of this section shall be increased by \1/16\ of an inch 
(1.5 mm).
    (d) Letter heights pertain to upper case or capital letters. When 
upper and lower case or all lower case letters are used, it is the lower 
case letter ``o'' or its equivalent that shall meet the minimum 
standards.
    (e) The ratio of height to width of a letter shall not exceed a 
differential of 3 units to 1 unit (no more than 3 times as high as it is 
wide).
    (f) When fractions are used, each component shall meet one-half the 
minimum height standards.
    (g) The type size requirements specified in this section do not 
apply to the ``e'' mark. (See Sec.  500.6(b).)
    (h) When upper and lower case or all lowercase letters are used in 
SI metric symbols, it is the uppercase ``L,'' lowercase ``d,'' or their 
equivalent in the print or type used that shall meet the minimum height 
requirement. Other letters and exponents must be presented in the same 
type style and in proportion to the type size used. However, no letter 
shall be less than 1.6 mm (\1/16\ inch) in height.



Sec.  500.22  Abbreviations.

    The following abbreviations and none other may be employed in the 
required net quantity declaration:

Inch--in.
Feet or foot--ft.
Fluid--fl.
Liquid--liq.
Ounce--oz.
Gallon--gal.
Pint--pt.
Pound--lb.
Quart--qt.
Square--sq.
Weight--wt.
Yard--yd.
Avoirdupois--avdp.
Cubic--cu.

    Note: Periods and plural forms shall be optional.



Sec.  500.23  Expression of net quantity of contents in SI Metric units.

    (a) The selected multiple or submultiple prefixes for SI metric 
units shall result in numerical values between 1 and 1000, except that 
centimeters or millimeters may be used where a length declaration is 
less than 100 centimeters. For example, ``1.96 kg'' instead of ``1960 
g'' and ``750 mL'' instead of ``0.75 L''.
    (b) The following symbols for SI metric units and none others may be 
employed in the required net quantity declaration:

centimeter--cm
cubic centimeter--cm \3\
cubic decimeter--dm \3\
meter--m
milligram--mg
liter--L or l
milliliter--mL or ml
square decimeter--dm \2\
cubic meter--m \3\
kilogram--kg
micrometer--[mu]m
gram--g
millimeter--mm
square meter--m\2\
square centimeter--cm\2\

    Note: Symbols, except for liter, are not capitalized. Periods should 
not be used after the symbol. Symbols are always written in the singular 
form.



Sec.  500.24  Supplemental statements.

    Nothing contained in the regulations in this part shall prohibit 
supplemental statements, at locations other than the principal display 
panel, describing in non-deceptive terms the net quantity of contents: 
Provided that such supplemental statements of net quantity of contents 
shall not include any term qualifying a unit of weight or mass, measure, 
or count that tends to exaggerate the amount of commodity contained in 
the package. (Examples of prohibited language are: ``Giant Quart,'' 
``Jumbo Liter,'' ``Full Gallon,'' ``When Packed,'' ``Minimum,'' or words 
of similar import.) Required combination declarations of net quantity of

[[Page 483]]

contents (for example, a combination of net weight or mass plus 
numerical count, numerical count plus dimensions of the commodity, etc.) 
are not regarded as supplemental net quantity statements and shall be 
located on the principal display panel. Dilution directions or other 
similar directions for use are not regarded as supplemental net quantity 
statements and may be located on the principal display panel. Size 
characterizations in compliance with standards promulgated under section 
5(c)(1) of the Act may appear on the principal display panel.



Sec.  500.25  Net quantity, average quantity, permitted variations.

    (a) The statement of net quantity of contents shall accurately 
reveal the quantity of the commodity in the container exclusive of 
wrappers and other material packed therewith: Provided, that in the case 
of a commodity packed in a container designed to deliver the commodity 
under pressure, the statement shall declare the net quantity of the 
contents that will be expelled when the instructions for use are 
followed. The propellant is included in the net quantity statement.
    (b) Variations from the stated weight or mass or measure shall be 
permitted when caused by ordinary and customary exposure, after the 
commodity is introduced into interstate commerce, to conditions which 
normally occur in good distribution practice and which unavoidably 
result in change of weight or mass or measure.
    (c) Variations from the stated weight or mass, measure, or numerical 
count shall be permitted when caused by unavoidable deviations in 
weighing, measuring, or counting the contents of individual packages 
which occur in good packaging practice: Provided, that such variations 
shall not be permitted to such extent that the average of the quantities 
in the packages comprising a shipment or other delivery of the commodity 
is below the quantity stated, and no unreasonable shortage in any 
package will be permitted even though overages in other packages in the 
same shipment or delivery compensate for such shortage. Variations from 
stated quantity of contents shall not be unreasonably large.



Sec.  500.26  Representations of servings, uses, applications.

    (a) The label of any packaged consumer commodity which bears a 
representation as to the number of servings, uses, or applications of 
such commodity contained in such package shall bear in immediate 
conjunction therewith, and in letters the same size as those used for 
such representations, a statement of the net quantity (in terms of 
weight or mass, measure, or numerical count) of each such serving, use, 
or application: Provided, that such statement may be expressed in terms 
that differ from terms used in the required statement of net contents 
(e.g., cupsful, tablespoonful, etc.), when such differing terms describe 
a constant quantity. Such statement may not be misleading in any 
particular.
    (b) Representations as to the total amount of object or objects to 
which the commodity may be applied or upon which or in which the 
commodity may be used, will not be considered to be representations as 
to servings, uses, or applications, if such amount is expressed in terms 
of standard units of weight or mass, measure, size, or count.
    (c) If there exists a voluntary product standard promulgated 
pursuant to the procedures found in 15 CFR part 10, by the Department of 
Commerce, quantitatively defining the meaning of the terms serving, use, 
or application with respect to a particular consumer commodity, then any 
label representation as to the number of servings, uses, or applications 
in such packaged consumer commodity shall correspond with such 
quantitative definition. (Copies of published standards will be 
available upon request from the National Institute of Standards and 
Technology, Department of Commerce, Washington, DC 20899.)



Sec.  500.27  Multiunit packages.

    (a) A multiunit package is a package intended for retail sale, 
containing two or more individual packaged or labeled units of an 
identical commodity in the same quantity. The declaration of net 
quantity of contents of a multiunit package shall be expressed as 
follows:
    (1) The number of individual packaged or labeled units;

[[Page 484]]

    (2) The quantity of each individual packaged or labeled unit; and
    (3) The total quantity of the multiunit package.

    Examples: Soap bars: ``6 Bars, Net Wt. 3.4 ozs. (96.3 g) each, Total 
Net Wt. 1 lb. 4.4 oz. (578 g)'' Facial Tissues: ``10 Packs, each 25 two-
ply tissues, 9.7 in. x 8.2 in. (24.6 x 20.8 cm), Total 250 Tissues.''

    (b) The individual packages or labeled units of a multiunit package, 
when intended for individual sale separate from the multiunit package, 
shall be labeled in compliance with the regulations under this part 500 
applicable to that package.
    (c) A multiunit package containing unlabeled individual packages 
which are not intended for retail sale separate from the multiunit 
package may contain, in lieu of the requirements of Paragraph (a) of 
this section, a declaration of quantity of contents expressing the total 
quantity of the multiunit package without regard for inner packaging. 
For such multiunit packages it shall be optional to include a statement 
of the number of individual packages when such a statement is not 
otherwise required by the regulations.

    Examples: Deodorant Cakes: ``5 Cakes, Net Wt. 4 ozs. (113 g) each, 
Total Net Wt. 1.25 lb. (566 g)'' or ``5 Cakes, Total Net Wt. 1 lb. 4 
ozs. (566 g)'';

    Soap Packets: ``10 Packets, Net Wt. 2 ozs. (56.6 g) each, total Net 
Wt 1.25 lb. (566 g)'' or ``Net Wt 1 lb. 4 ozs. (566 g)'' or ``10 
Packets, Total Net Wt. 1 lb. 4 ozs. (566 g).''



Sec.  500.28  Variety packages.

    (a) A variety package is a package intended for retail sale, 
containing two or more individual packages or units of similar but not 
identical commodities. Commodities which are generically the same but 
which differ in weight or mass, measure, volume, appearance or quality 
are considered similar but not identical. The declaration of net 
quantity for a variety package will be expressed as follows:
    (1) The number of units for each identical commodity followed by the 
weight or mass, volume, or measure of that commodity: and
    (2) The total quantity by weight or mass, volume, measure, and 
count, as appropriate, of the variety package. The statement of total 
quantity shall appear as the last item in the declaration of net 
quantity and shall not be of greater prominence than other terms used.

                                Examples:

    (i) ``2 sponges 4\1/2\ ins. x 4 ins. x\3/4\ in. (11.4 cm x 10.1 cm x 
1.9 cm); 1 sponge 4\1/2\ ins. x 8 ins. x\3/4\ in. (11.4 cm x 20.3 cm x 
1.9 cm); 4 sponges 2\1/2\ ins. x 4 ins. x\1/2\ in. (6.3 cm x 10.1 cm x 
1.2 cm)

Total: 7 sponges''.

    (ii) ``2 soap bars Net Wt. 3.2 ozs. (90 g) each; 1 soap bar Net Wt. 
5.0 ozs. (141 g).

Total: 3 bars Net Wt. 11.4 ozs. (323 g).''

    (iii) Liquid Shoe Polish: ``1 Brown 3 fl. ozs. (88 mL); 1 Black 3 
fl. ozs. (88 mL); 1 White 5 fl. ozs. (147 mL).

Total: 11 fl. ozs. (325 mL).''

    (iv) Picnic Ware: ``34 spoons; 33 forks; 33 knives.

Total: 100 pieces.''

    (b) When the individual units in a variety package are either 
packaged or labeled and are intended for retail sale as individual 
units, each unit shall be labeled in compliance with the applicable 
regulations under this part 500.



Sec.  500.29  Combination packages.

    (a) A combination package is a package intended for retail sale, 
containing two or more individual packages or units of dissimilar 
commodities. The declaration of net quantity for a combination package 
will contain an expression of weight or mass, volume, measure or count 
or a combination, thereof, as appropriate for each individual package or 
unit: Provided, that the quantity statements for identical packages or 
units shall be combined.

                                Examples

    (1) Lighter fluid and flints: ``2 cans--each 8 fl. ozs. (236 mL); 1 
package--8 flints.''
    (2) Sponges & Cleaner: ``2 sponges each 4 in. x 6 in. x 1 in. (10.1 
x 15.2 x 2.5 cm); 1 box cleaner--Net Wt. 6 ozs. (170 g)''
    (3) Picnic Pack: ``20 spoons, 10 knives and 10 forks, 10 2-ply 
napkins 10 ins. x 10 ins. (25.4 x 25.4 cm) 10 cups--6 fl. ozs. (177 
mL)''.

[[Page 485]]

    (b) When the individual units in a combination package are either 
packaged or labeled and are intended for retail sale as individual 
units, each unit shall be in compliance with the applicable regulations 
under this part 500.



PART 501_EXEMPTIONS FROM REQUIREMENTS AND PROHIBITIONS UNDER PART 500--Table of Contents




Sec.
501.1 Camera film.
501.2 Christmas tree ornaments.
501.3 Replacement bags for vacuum cleaners.
501.4 Chamois.
501.5 Paper table covers, bedsheets, pillowcases.
501.6 Cellulose sponges, irregular dimensions.
501.7 Candles.
501.8 Solder.

    Authority: Secs. 5, 6, 80 Stat. 1298, 1299, 1300; 15 U.S.C. 1454, 
1455.



Sec.  501.1  Camera film.

    Camera film packaged and labeled for retail sale is exempt from the 
net quantity statement requirements of part 500 of this chapter which 
specify how measurement of commodities should be expressed, provided:
    (a) The net quantity of contents on packages of movie film and bulk 
still film is expressed in terms of the number of lineal feet of usable 
film contained therein.
    (b) The net quantity of contents on packages of still film is 
expressed in terms of the number of exposures the contents will provide. 
The length and width measurements of the individual exposures, expressed 
in millimeters or inches, are authorized as an optional statement. 
(Example: ``36 exposures, 36 x 24 mm. or 12 exposures, 2\1/4\ x 2\1/4\ 
inches''.)

[35 FR 75, Jan. 3, 1970]



Sec.  501.2  Christmas tree ornaments.

    Christmas tree ornaments packaged and labeled for retail sale are 
exempt from the net quantity statement requirements of part 500 of this 
chapter which specify how the net quantity statement should be 
expressed, provided:
    (a) The quantity of contents is expressed in terms of numerical 
count of the ornaments, and
    (b) The ornaments are so packaged that the ornaments are clearly 
visible to the retail purchaser at the time of purchase.

[35 FR 9108, June 12, 1970]



Sec.  501.3  Replacement bags for vacuum cleaners.

    Replacement bags for vacuum cleaners, packaged and labeled for 
retail sale are exempt from the requirements of Sec.  500.15a of this 
chapter which specifies how measurement of container type commodities 
should be expressed, provided:
    (a) The quantity of contents is expressed in terms of numerical 
count of the bags;
    (b) A statement appears on the principal display panel of the 
package accurately identifying the make and model of the vacuum cleaner 
or cleaners in which the replacement bag is intended to effectively 
function;
    (c) The name and place of business of the manufacturer, packer, or 
distributor of the replacement bags, in addition to the requirements of 
Sec.  500.5 of this chapter, appears on the principal display panel of 
the package.

[35 FR 10510, June 27, 1970]



Sec.  501.4  Chamois.

    Chamois packaged or labeled for retail sale is exempt from the 
requirements of Sec.  500.13 of this chapter which specifies how 
measurement of commodities by area measure should be expressed: 
Provided:
    (a) The quantity of contents for full skins is expressed in terms of 
square feet with any remainder in terms of the common or decimal 
fraction of the square foot.
    (b) The quantity of contents for cut skins of any configuration is 
expressed in terms of square inches and fractions thereof. Where the 
area of a cut skin is at least one square foot or more, the statement of 
square inches shall be followed in parentheses by a declaration in 
square feet with any remainder in terms of square inches or common or 
decimal fractions of the square foot.

[35 FR 19572, Dec. 24, 1970]

[[Page 486]]



Sec.  501.5  Paper table covers, bedsheets, pillowcases.

    Table covers, bedsheets, and pillowcases, fabricated from paper, are 
exempt from the requirements of Sec.  500.12 of this chapter which 
specifies the expression of measurement of bidimensional commodities: 
Provided, That such commodities shall clearly present their actual 
length and width in terms of inches.

[35 FR 19077, Dec. 17, 1970]



Sec.  501.6  Cellulose sponges, irregular dimensions.

    Variety packages of cellulose sponges of irregular dimensions, are 
exempted from the requirements of Sec.  500.25 of this chapter, 
provided:
    (a) Such sponges are packaged in transparent packages which afford 
visual inspection of the varied sizes, shapes, and irregular dimensions; 
and
    (b) The quantity of contents declaration is expressed as a 
combination of count accompanied by the term irregular dimensions.

    Example: ``10 Assorted Sponges--Irregular dimensions.''

[35 FR 18510, Dec. 5, 1970]



Sec.  501.7  Candles.

    Tapered candles and irregularly shaped decorative candles which are 
either hand dipped or molded are exempt from the requirements of Sec.  
500.7 of this chapter which specifies that the net quantity of contents 
shall be expressed in terms of count and measure (e.g., length and 
diameter), to the extent that diameter of such candles need not be 
expressed. The requirements of Sec.  500.7 of this chapter for these 
candles will be met by an expression of count and length or height in 
inches.

[36 FR 5690, Mar. 26, 1971]



Sec.  501.8  Solder.

    Solder and brazing alloys containing precious metals when packaged 
and labeled for retail sale are exempt from the net quantity statement 
requirements of part 500 of this chapter which specify that all 
statements of weight shall be in terms of avoirdupois pound and ounce 
provided the net quantity declaration is stated in terms of the troy 
pound and ounce and the term troy is used in each declaration.

[37 FR 4429, Mar. 3, 1972]



PART 502_REGULATIONS UNDER SECTION 5(C) OF THE FAIR PACKAGING AND 
LABELING ACT--Table of Contents




                                  Scope

Sec.
502.1 Scope of the regulations in this part.

                               Definitions

502.2 Terms defined.

                          General Requirements

502.3 Prohibited acts.

                    Characterization of Package Size

502.4-502.99 [Reserved]

                    Retail Sale Price Representations

502.100 ``Cents-off'' representations.
502.101 Introductory offers.
502.102 ``Economy size''.

                   Common Name and Ingredient Listing

502.200-502.299 [Reserved]

                        Nonfunctional-Slack-Fill

502.300-502.399 [Reserved]

    Authority: Secs. 5, 6, 80 Stat. 1299, 1300; 15 U.S.C. 1454, 1455.

    Source: 36 FR 12286, June 30, 1971, unless otherwise noted.

                                  Scope



Sec.  502.1  Scope of the regulations in this part.

    The regulations in this part establish requirements for labeling of 
consumer commodities with respect to use of package size 
characterizations, retail sale price representations, and common name 
and ingredient listing. Additionally, the regulations in this part 
establish criteria to prevent nonfunctional-slack-fill of packages 
containing consumer commodities.

                               Definitions



Sec.  502.2  Terms defined.

    As used in this part, unless the context otherwise specifically 
requires:
    (a) The terms Act, regulation or regulations, consumer commodity, 
package,

[[Page 487]]

label, person, commerce, principal display panel, and random package 
have the same meaning as those terms are defined under part 500 of this 
chapter.
    (b) The term packager and labeler means any person engaged in the 
packaging or labeling of any consumer commodity for distribution in 
commerce or any person, other than a common carrier for hire, a contract 
carrier for hire, or a freight forwarder for hire, engaged in the 
distribution in commerce of any packaged or labeled consumer commodity; 
except persons engaged in business as wholesale or retail distributors 
of consumer commodities are not included unless such persons (1) are 
engaged in the packaging or labeling of such commodities, or (2) 
prescribe or specify by any means the manner in which such commodities 
are packaged or labeled.
    (c) The terms ordinary and customary and regular when used with the 
term price means the price at which a consumer commodity has been openly 
and actively sold in the most recent and regular course of business in a 
particular market or trade area for a reasonably substantial period of 
time, i.e., a 30-day period. For consumer commodities which fluctuate in 
price, the ordinary and customary price shall be the lowest price at 
which any substantial sales were made during the aforesaid 30-day 
period.

                          General Requirements



Sec.  502.3  Prohibited acts.

    (a) No person engaged in the packaging or labeling of any consumer 
commodity for distribution in commerce, and no person (other than a 
common carrier for hire, a contract carrier for hire, or a freight 
forwarder for hire) engaged in the distribution in commerce of any 
packaged or labeled consumer commodity, shall distribute or cause to be 
distributed in commerce any such commodity if such commodity is 
contained in a package, or if there is affixed to that commodity a 
label, which does not conform to the provisions of the Act and of the 
regulations in this part.
    (b) Persons engaged in business as wholesale or retail distributors 
of consumer commodities shall be subject to the Act and the regulations 
in this part to the extent that such persons are engaged in the 
packaging or labeling of consumer commodities, or prescribe or specify 
by any means the manner in which such consumer commodities are packaged 
or labeled.

                    Characterization of Package Size



Sec. Sec.  502.4-502.99  [Reserved]

                    Retail Sale Price Representations



Sec.  502.100  ``Cents-off'' representations.

    (a) The term cents-off representation means any printed matter 
consisting of the words ``cents-off'' or words of similar import, placed 
upon any packaging containing a consumer commodity or placed upon any 
label affixed to such commodity, stating or representing by implication 
that the commodity is being offered for sale at a price lower than the 
ordinary and customary retail sale price.
    (b) Except as set forth in Sec.  502.101 of this part, the package 
or label of a consumer commodity shall not have imprinted thereon by a 
packager or labeler a ``cents-off'' representation unless:
    (1) The commodity has been sold by the packager or labeler at an 
ordinary and customary price in the most recent and regular course of 
business in the trade area in which the ``cents-off'' promotion is made, 
either to the trade in the event such commodity is not sold at retail by 
the packager or labeler, or to the public in the event such commodity is 
sold at retail by the packager or labeler.
    (2) The packager or labeler sells the commodity so labeled (either 
to the trade in the event such commodity is not sold at retail by the 
packager or labeler, or to the public in the event such commodity is 
sold at retail by the packager or labeler) at a reduction from his 
ordinary and customary price, which reduction is at least equal to the 
amount of the ``cents-off'' representation imprinted on the commodity 
package or label.
    (3) Each ``cents-off'' representation imprinted on the package or 
label is limited to a phrase which reflects that the price marked by the 
retailer represents the savings in the amount of the ``cents-off'' the 
retailer's regular

[[Page 488]]

price, e.g., ``Price Marked is ----[cent] Off the Regular Price''. 
``Price Marked is ---- Cents-off the Regular Price of This Package''; 
provided, the package or label may in addition bear in the usual pricing 
spot a form reflecting a space for the regular price, the represented 
``cents-off'' and a space for the price to be paid by the consumer.
    (4) The packager or labeler who sells the commodity at retail 
displays the regular price, designated as the ``regular price'', clearly 
and conspicuously on the package or label of the commodity or on a sign, 
placard, or shelf-marker placed in a position contiguous to the retail 
display of the ``cents-off'' marked commodity, and the packager or 
labeler who does not sell at retail provides the retailer with a sign, 
placard, shelf-marker, or other device for the purpose of clearly and 
conspicuously displaying the retailers regular price, designated as 
``regular price'', in a position contiguous to the ``cents-off'' marked 
commodity.
    (5) The packager or labeler:
    (i) Does not initiate more than three ``cents-off'' promotions of 
any single size commodity in the same trade area within a 12-month 
period;
    (ii) Allows at least 30 days to lapse between ``cents-off'' 
promotions of any particular size packaged or labeled commodity in a 
specific trade area; and
    (iii) Does not sell any single size commodity so labeled in a trade 
area for a duration in excess of 6 months within any 12-month period.
    (6) Sales by the packager or labeler of any single size commodity so 
labeled in a trade area do not exceed in volume fifty percent (50%) of 
the total volume of sales of such size commodity in the same trade area 
during any 12-month period. The 12-month period used by the packager or 
labeler may be the calendar, fiscal, or market year provided the 
identical period is applied in this paragraph (b)(6) and paragraph 
(b)(5) of this section. Volume limits may be calculated on the basis of 
projections for the current year but shall not exceed 50 percent of the 
sales for the preceding year in the event actual sales are less than the 
projection for the current year.
    (c) A packager or labeler will not make a ``cents-off'' promotion 
available in any circumstances where he knows or should have reason to 
know that it will be used as an instrumentality for deception or for 
frustration of value comparison, e.g., where the retailer charges a 
price which does not fully pass on to the consumers the represented 
price reduction or where the retailer fails to display the regular price 
in the display area of the ``cents-off'' marked product. Nothing in this 
rule, however, should be construed to authorize or condone the illegal 
setting or policing of retail prices by a packager or labeler in 
situations where he does not sell to the public.
    (d) A packager or labeler who sponsors a ``cents-off'' promotion 
shall prepare and maintain invoices or other rec ords showing compliance 
with this section. The invoices or other records required by this 
section shall be open to inspection by duly authorized representatives 
of this Commission and shall be retained for a period of 1 year 
subsequent to the end of the year (calendar, fiscal, or market) in which 
the ``cents-off'' promotion occurs.

[36 FR 23057, Dec. 3, 1971]



Sec.  502.101  Introductory offers.

    (a) The term introductory offer means any printed matter consisting 
of the words ``introductory offer'' or words of similar import, placed 
upon a package containing any new commodity or upon any label affixed to 
such new commodity, stating or representing by implication that such new 
commodity is offered for retail sale at a price lower than the 
anticipated ordinary and customary retail sale price.
    (b) The package or label of a consumer commodity may not have 
imprinted thereon by a packager or labeler an introductory offer unless:
    (1) The product contained in the package is new, has been changed in 
a functionally significant and substantial respect, or is being 
introduced into a trade area for the first time.
    (2) The packager or labeler clearly and conspicuously qualifies each 
offer on a package or label with the phrase ``Introductory Offer.''
    (3) The packager or labeler does not sell any commodity so labeled 
in a trade area for a duration in excess of 6 months.

[[Page 489]]

    (4) At the time of making the introductory offer promotion, the 
packagers or labeler intends in good faith to offer the commodity, 
alone, at the anticipated ordinary and customary price for a reasonably 
substantial period of time following the duration of the introductory 
offer promotion.
    (c) The package or label of a consumer commodity shall not have 
imprinted thereon by a packager or labeler an introductory offer in the 
form of a ``cents-off'' representation unless, in addition to the 
requirements in paragraph (b) of this section:
    (1) The packager or labeler clearly and conspicuously and in 
immediate conjunction with the phrase ``Introductory Offer'' imprints 
the phrase ``---- cents-off the after introductory offer price''.
    (2) The packager or labeler sells the commodity so labeled (either 
to the trade in the event such commodity is not sold at retail by the 
packager or labeler, or to the public in the event such commodity is 
sold at retail by the packager or labeler) at a reduction from his 
anticipated ordinary customary price, which reduction is at least equal 
to the amount of the reduction from the after introductory offer price 
representation on the commodity package or label.
    (d) A packager or labeler will not make an introductory offer with a 
``cents-off'' representation available in any circumstance where he 
knows or should have reason to know that it will be used as an 
instrumentality for deception or for frustration of value comparison, 
e.g., where the retailer charges a price which does not fully pass on to 
consumers the represented price reduction. Nothing in this rule, 
however, should be construed to authorize or condone the illegal setting 
or policing of retail prices by a packager or labeler.
    (e) A packager or labeler who sponsors an introductory offer shall 
prepare and maintain invoices or other rec ords showing compliance with 
this section. The invoices or other records required by this section 
shall be open to inspection by duly authorized representatives of this 
Commission and shall be retained for a period of 1 year subsequent to 
the period of the introductory offer.



Sec.  502.102  ``Economy size.''

    (a) The term economy size means any printed matter consisting of the 
words ``economy size,'' ``economy pack,'' ``budget pack,'' ``bargain 
size,'' ``value size,'' or words of similar import placed upon any 
package containing any consumer commodity or placed upon any label 
affixed to such commodity, stating or representing directly or by 
implication that a retail sale price advantage is accorded the purchaser 
thereof by reason of the size of that package or the quantity of its 
contents.
    (b) The package or label of a consumer commodity may not have 
imprinted thereon an ``economy size'' representation unless:
    (1) The packager or labeler at the same time offers the same brand 
of that commodity in at least one other packaged size or labeled form.
    (2) The packager or labeler offers only one packaged or labeled form 
of that brand of commodity labeled with an ``economy size'' 
representation.
    (3) The packager or labeler sells the commodity labeled with an 
``economy size'' representation (either to the trade in the event such 
commodity is not sold at retail by the packager or labeler, or to the 
public in the event such commodity is sold at retail by the packager or 
labeler), at a price per unit of weight, volume, measure, or count which 
is substantially reduced (i.e., at least 5 percent) from the actual 
price of all other packaged or labeled units of the same brand of that 
commodity offered simultaneously.
    (c) A packager or labeler will not make an ``economy size'' package 
available in any circumstances where he knows that it will be used as an 
instrumentality for deception, e.g., where the retailer charges a price 
which does not pass on to the consumer the substantial reduction in cost 
per unit initially granted by the packager or labeler. Nothing in this 
rule, however, should be construed to authorize or condone the illegal 
setting or policing of retail prices by a packager or labeler.
    (d) A packager or labeler who sponsors an ``economy size'' package 
shall prepare and maintain invoices or other records showing compliance 
with paragraph (b) of this section. The invoices

[[Page 490]]

or other records required by this section shall be open to inspection by 
duly authorized representatives of this Commission and shall be retained 
for one year.

                   Common Name and Ingredient Listing



Sec. Sec.  502.200-502.299  [Reserved]

                        Nonfunctional-Slack-Fill



Sec. Sec.  502.300-502.399  [Reserved]



PART 503_STATEMENTS OF GENERAL POLICY OR INTERPRETATION--Table of Contents




Sec.
503.1 Interpretations.
503.2 Status of specific items under the Fair Packaging and Labeling 
          Act.
503.3 Name and place of business of manufacturer, packer, or 
          distributor.
503.4 Net quantity of contents, numerical count.
503.5 Interpretation of the definition of ``consumer commodity'' as 
          contained in section 10(a) of the Fair Packaging and Labeling 
          Act.
503.6 Packagers' duty to withhold availability of packages imprinted 
          with retail sale price representations.

    Authority: Secs. 4, 6, 10, 80 Stat. 1297, 1999, 1300, 1301; 15 
U.S.C. 1453, 1455, 1456.



Sec.  503.1  Interpretations.

    The regulations in parts 500, 501, and 502 of this chapter are 
necessarily general in application and requests for formal rulings, 
statements of policy or interpretations shall be addressed to the 
Secretary of the Commission for consideration. Statements of policy or 
interpretations binding on the Commission will be published in the 
Federal Register. However, technical questions not involving policy 
consideration may be answered by the staff.

[36 FR 23058, Dec. 3, 1971]



Sec.  503.2  Status of specific items under the Fair Packaging and Labeling Act.

    Recent questions submitted to the Commission concerning whether 
certain articles, products or commodities are included under the 
definition of the term consumer commodity, as contained in section 10(a) 
of the Fair Packaging and Labeling Act, have been considered in the 
light of the Commission's interpretation of that term as set forth in 
Sec.  503.5 of this part as follows:
    (a) The Commission is of the opinion that the following commodities 
or classes of commodities are not ``consumer commodities'' within the 
meaning of the Act.

Antifreeze.
Artificial flowers and parts.
Automotive accessories.
Automotive chemical products.
Automotive replacement parts.
Bicycle tires and tubes.
Books.
Brushes (bristle, nylon, etc.).
Brooms and mops.
Cameras.
Chinaware.
Christmas light sets.
Cigarette lighters.
Clothespins (wooden, plastic).
Compacts and mirrors.
Diaries and calendars.
Flower seeds.
Footwear.
Garden tools.
Gift ties and tapes.
Glasses and glassware.
Gloves (work type).
Greeting cards.
Hand tools.
Handicraft and sewing thread.
Hardware.
Household cooking utensils.
Inks.
Jewelry.
Luggage.
Magnetic recording tape.
Metal pails.
Motor oil (automobile).
Mouse and rat traps.
Musical instruments.
Paintings and wall plaques.
Photo albums.
Pictures.
Plastic table cloths, plastic placement and plastic shelf paper.
Rubber gloves (household).
Safety flares.
Safety pins.
School supplies.
Sewing accessories.
Silverware, stainless steelware and pewterware.
Small arms ammunition.
Smoking pipes.
Souvenirs.
Sporting goods.
Toys.
Typewriter ribbons.
Woodenware.

    (b) The Commission is of the opinion that the following commodities 
or

[[Page 491]]

classes of commodities are ``consumer commodities'' within the meaning 
of the Act:

Adhesives and sealants.
Aluminum foil cooking utensils.
Aluminum wrap.
Camera supplies.
Candles.
Christmas decorations.
Cordage.
Disposable diapers.
Dry cell batteries.
Light bulbs.
Liquified petroleum gas for other than heating and cooking.
Lubricants for home use.
Photographic chemicals.
Pressure sensitive tapes, excluding gift tapes.
Solder.
Solvents and cleaning fluids for home use.
Sponges and chamois.
Waxes for home use.

[35 FR 6185, Apr. 16, 1970]



Sec.  503.3  Name and place of business of manufacturer, packer, or distributor.

    To clarify the identity of a manufacturer, packer, or distributor 
for the purpose of Sec.  500.5 of this chapter, the following represents 
the opinions of the Commission.
    (a) A manufacturer of a bulk product who supplies the product to a 
contract packager and permits his bulk product to be packaged by the 
contract packager remains the manufacturer of the commodity, if the 
contract packager does not perform any act other than package filling 
and labeling.
    (b)(1) A manufacturer of a bulk product who supplies the bulk to a 
contract packager but permits the packager to modify the bulk commodity 
by the addition of any substance which changes the identity of the bulk, 
ceases to be the manufacturer of the consumer commodity. At that point, 
if the manufacturer of the bulk elects to use his name on the label of 
the consumer commodity, his name should be qualified to show 
``Distributed by --------------'', or ``Manufactured for --------------
----''.
    (2) The identity of a bulk substance received by a contract packager 
is changed if the packager, for example, adds a propellant as in the 
case of an aerosol, or adds a solvent as in the case of a paint, or 
blends two or more components, or changes the physical state as in the 
case of a liquid being changed to a gel or a semisolid being changed to 
a solid.
    (c) A person or firm who supplies a formula and/or specifications to 
a contract packager but who takes no part in the actual production of 
the consumer commodity is not the manufacturer of the consumer commodity 
for the purpose of Sec.  500.5(a) of this chapter. This is true whether 
the person or firm who supplies the formula or specifications, or both, 
also supplies the raw materials which are to be reacted, mixed, or 
otherwise modified to produce the consumer commodity.
    (d) A corporation which wholly owns a manufacturing subsidiary which 
retains its separate corporate identity, is not the manufacturer of the 
consumer commodities manufactured by the wholly owned subsidiary, but 
must qualify its name if it elects to use its name on the label. Such 
qualification may be ``Manufactured for ------------'', ``Distributed by 
--------------'', or ``Manufactured by -------------- (XYZ, Inc., City, 
State, Zip Code, a subsidiary of ABC, Inc.)''.

[34 FR 4956, Mar. 7, 1969, as amended at 34 FR 11199, July 3, 1969]



Sec.  503.4  Net quantity of contents, numerical count.

    To clarify the requirement for declaration of net quantity in terms 
of count for the purpose of Sec. Sec.  500.6 and 500.7 of this chapter, 
the following interpretation is rendered.
    (a) When a consumer commodity is properly measured in terms of count 
only, or in terms of count and weight, volume, area, or dimension, the 
regulations are interpreted not to require the declaration of the net 
content as ``one'', provided the statement of identity clearly expresses 
the fact that only one unit is contained in the package. Thus the unit 
synthetic sponge, the unit light bulb, and the unit dry cell battery do 
not require a net quantity statement of ``one sponge,'' ``one light 
bulb,'' or ``one dry cell battery.'' However, there still exists the 
necessity to provide a net quantity statement to specify weight, volume, 
area, or dimensions when such are required. For example, the synthetic 
sponge

[[Page 492]]

which is packaged, requires dimensions such as ``5 in. x 3 in. x 1 in.'' 
A multicomponent package or a package containing two or more units of 
the same commodity shall bear the net quantity statement in terms of 
count, and weight, volume, area, or dimensions as required. This 
interpretation does not preclude the option to enumerate a unit count on 
a single packaged commodity if so desired.
    (b) [Reserved]

[34 FR 18087, Nov. 8, 1969]



Sec.  503.5  Interpretation of the definition of ``consumer commodity'' 
as contained in section 10(a) of the Fair Packaging and Labeling Act.

    (a) Section 10(a) of the Fair Packaging and Labeling Act defines the 
term consumer commodity in four classifications. These are:
    (1) Any food, drug, device, or cosmetic;
    (2) And any other article, product, or commodity of any kind or 
class which is customarily produced or distributed for sale through 
retail sales agencies or instrumentalities.
    (i) For consumption by individuals and which usually is consumed or 
expended in the course of such consumption.
    (ii) For use by individuals for purposes of personal care and which 
usually is consumed or expended in the course of such use.
    (iii) For use by individuals in the performance of services 
ordinarily rendered within the household and which usually is consumed 
or expended in the course of such use.
    (b) Section 10(a) then expressly excludes (1) meats, poultry, and 
tobacco, (2) economic poisons and biologics for animals, (3) 
prescription drugs, (4) alcoholic beverages, and (5) agricultural and 
vegetable seeds.
    (c) Pursuant to sections 5 and 7 of the Fair Packaging and Labeling 
Act, the authority to promulgate regulations and to enforce the Act as 
to any food, drug, device, or cosmetic has been delegated to the 
Secretary of Health, Education, and Welfare and as to any other 
``consumer commodity'' to the Federal Trade Commission.
    (d) As to these articles, products, or commodities subject to 
regulation by the Federal Trade Commission, the legislative history of 
the Act demonstrates the intent of Congress, for the reasons stated 
therein, to place the following categories outside the scope of the 
definition of ``consumer commodity'':
    (1) Durable articles or commodities;
    (2) Textiles or items of apparel;
    (3) Any household appliance, equipment, or furnishing, including 
feather and down-filled products, synthetic-filled bed pillows, mattress 
pads and patchwork quilts, comforters and decorative curtains;
    (4) Bottled gas for heating or cooking purposes;
    (5) Paints and kindred products;
    (6) Flowers, fertilizer, and fertilizer materials, plants or shrubs, 
garden and lawn supplies;
    (7) Pet care supplies;
    (8) Stationery and writing supplies, gift wraps, fountain pens, 
mechanical pencils, and kindred products.
    (e) The articles, products, or commodities that are within the terms 
of section 10(a) of the Act and subject to regulation by the Federal 
Trade Commission are either expendable commodities for consumption by 
individuals, expendable commodities used for personal care, or 
expendable commodities used for household services. The primary terms in 
section 10(a) for defining these categories are:
    (1) Consumption by individuals;
    (2) Use by individuals;
    (3) Personal care by individuals;
    (4) Performances of services ordinarily rendered within the 
household by individuals;
    (5) Consumed or expended.
    (f) These terms are defined as follows:
    (1) Consumption by individuals. This term as it is used in section 
10(a) means the using up of an article, product, or commodity by an 
individual.
    (2) Use by individuals. This term as it is used in section 10(a) 
means the employment or application of an article, product, or commodity 
by an individual.
    (3) Personal care by individuals. This term as it is used in section 
10(a) means that activity of an individual which is concerned with 
protecting, enhancing, and providing for the general

[[Page 493]]

cleanliness, health, or appearance of the individual.
    (4) Performance of services ordinarily rendered within the household 
by individuals. These terms as they are used in section 10(a) mean: The 
term household refers to the interior and exterior of dwellings or 
residences occupied by individuals, including the surrounding premises. 
The term performance of services ordinarily rendered within the 
household means the doing of any activity by an individual within the 
above-described area which is normally done in connection with the 
maintenance and occupation of the above-described area as a habitation 
for individuals.
    (5) Consumed or expended. These terms as they are used in section 
10(a) mean (i) the immediate destruction or extinction of an article, 
product, or commodity, or of the part used; or (ii) the substantial 
diminution in the quantity, quality or utility of an article, product, 
or commodity which results from usage upon one or several occasions over 
a comparatively short period of time.
    (g) The foregoing definition serves to amplify the definition of 
``consumer commodity'' supplied by Congress in section 10(a) of the Act. 
As questions arise as to whether specific articles, products, or 
commodities are included in the above definition, the Commission will 
consider, among other things, the Congressional policy declared in 
section 2 of the Act, namely, that packages and labels should enable 
consumers to obtain accurate information as to the quantity of contents 
and should facilitate value comparisons. That is, in making its 
determinations of inclusions and exclusions under this definition, the 
Commission will consider the requirements of both the Act and the 
pertinent regulations and in that connection will regard as one 
criterion the extent to which the disclosures required on ``consumer 
commodities'' are material to a consumer's selection of a particular 
article, product, or commodity. Interpretative rulings in such instances 
will be made public, and can be expected to further contribute to the 
development of clearer delineation of the scope of the term ``consumer 
commodity''.
    (h) With respect to articles, products, or commodities included 
within the definition of ``consumer commodities'', the Commission will 
consider requests for exemptions in accordance with section 5(b) of the 
Act and Sec.  500.3(e) of this chapter, and will make public its rulings 
on all such requests.

[34 FR 12945, Aug. 9, 1969]



Sec.  503.6  Packagers' duty to withhold availability of packages 
imprinted with retail sale price representations.

    To clarify the requirements, under part 502 of this chapter, that a 
packager or labeler will not make packages marked with retail sale price 
representations available in any circumstance where he knows or should 
have reason to know that it will be used as an instrumentality for 
deception or for frustration of value comparison, the following 
represents the opinions of the Commission:
    (a) Details of a plan to provide special packaging or special 
package sizes bearing retail sale price representations should contain 
the condition that customers will not be provided with such packages 
unless they resell the package at a price which fully passes on to the 
purchasers the represented savings or sale price advantage.
    (b) A packager or labeler who, in good faith, takes reasonable and 
prudent measures to verify the performance of his customers will be 
deemed to have satisfied his obligation under the regulations. If the 
packager has taken such steps, the fact that a particular customer has 
failed to resell the packages at a price which fully passes on to the 
purchaser the represented savings or sale price advantage shall not 
alone place a seller in violation of the regulations.
    (c) Any packager or labeler who determines that a customer does not 
intend to fulfill or has not fulfilled the conditions of an offer should 
immediately refrain from further sale under that offer to the customer. 
In situations where proper fulfillment of the conditions of an offer are 
in question, the Commission will resolve the issue after appropriate 
investigation of the facts submitted.

[36 FR 23058, Dec. 3, 1971]

[[Page 494]]



 SUBCHAPTER F_STATEMENTS OF GENERAL POLICY OR INTERPRETATIONS UNDER THE 
                        FAIR CREDIT REPORTING ACT





PART 600_STATEMENTS OF GENERAL POLICY OR INTERPRETATIONS--Table of Contents




Sec.
600.1 Authority and purpose.
600.2 Legal effect.

Appendix to Part 600--Commentary on the Fair Credit Reporting Act

    Authority: 15 U.S.C. 1681s and 16 CFR 1.73.

    Source: 55 FR 18808, May 4, 1990, unless otherwise noted.



Sec.  600.1  Authority and purpose.

    (a) Authority. This part is issued by the Commission pursuant to the 
provisions of the Fair Credit Reporting Act. Pub. L. 91-508, approved 
October 26, 1970. 84 Stat. 1127-36 (15 U.S.C. 1681 et seq).
    (b) Purpose. The purpose of this part is to clarify and consolidate 
statements of general policy or interpretations in a commentary in the 
appendix to this part. The Commentary will serve as guidance to consumer 
reporting agencies, their customers, and consumer representatives. The 
Fair Credit Reporting Act requires that the manner in which consumer 
reporting agencies provide information be fair and equitable to the 
consumer with regard to the confidentiality, accuracy, and proper use of 
such information. The Commentary will enable interested parties to 
resolve their questions more easily, present a more comprehensive 
treatment of interpretations and facilitate compliance with the Fair 
Credit Reporting Act in accordance with Congressional intent.



Sec.  600.2  Legal effect.

    (a) The interpretations in the Commentary are not trade regulation 
rules or regulations, and, as provided in Sec.  1.73 of the Commission's 
rules, they do not have the force or effect of statutory provisions.
    (b) The regulations of the Commission relating to the administration 
of the Fair Credit Reporting Act are found in subpart H of 16 CFR part 1 
(Sec. Sec.  1.71-1.73).

    Appendix to Part 600--Commentary on the Fair Credit Reporting Act

                              Introduction

    1. Official status. This Commentary contains interpretations of the 
Federal Trade Commission (Commission) of the Fair Credit Reporting Act 
(FCRA). It is a guideline intended to clarify how the Commission will 
construe the FCRA in light of Congressional intent as reflected in the 
statute and its legislative history. The Commentary does not have the 
force or effect of regulations or statutory provisions, and its contents 
may be revised and updated as the Commission considers necessary or 
appropriate.
    2. Status of previous interpretations. The Commentary primarily 
addresses issues discussed in the Commission's earlier formal 
interpretations of the FCRA (16 CFR 600.1-600.8), which are hereby 
superseded, in the staff's manual entitled ``Compliance With the Fair 
Credit Reporting Act'' (the current edition of which was published in 
May 1973, and revised in January 1977 and March 1979), and in informal 
staff opinion letters responding to public requests for interpretations, 
and it also reflects the results of the Commission's FCRA enforcement 
program. It is intended to synthesize the Commission's views and give 
clear advice on important issues. The Commentary sets forth some 
interpretations that differ from those previously expressed by the 
Commission or its staff, and is intended to supersede all prior formal 
Commission interpretations, informal staff opinion letters, and the 
staff manual cited above.
    3. Statutory references. Reference to several different provisions 
of the FCRA is frequently required in order to make a complete analysis 
of an issue. For various sections and subsections of the FCRA, the 
Commentary discusses the most important and common overlapping 
references under the heading ``Relation to other (sub)sections.''
    4. Issuance of staff interpretations. The Commission will revise and 
update the Commentary as it deems necessary, based on the staff's 
experience in responding to public inquiries about, and enforcing, the 
FCRA. The Commission welcomes input from interested industry and 
consumer groups and other public parties on the Commentary and on issues 
discussed in it. Staff will continue to respond to requests for informal 
staff interpretations. In proposing revisions of the Commentary, staff 
will consider and, where appropriate, recommend that the Commentary 
incorporate issues raised in correspondence

[[Page 495]]

and other public contacts, as well as in connection with the 
Commission's enforcement efforts. Therefore, a party may raise an issue 
for inclusion in future editions of the Commentary without making any 
formal submission or request to that effect. However, requests for 
formal Commission interpretations of the FCRA may also still be made 
pursuant to the procedures set forth in the Commission's Rules (16 CFR 
1.73).
    5. Commentary citations to FCRA. The Commentary should be used in 
conjunction with the text of the statute. In some cases, the Commentary 
includes an abbreviated description of the statute, rather than the full 
text, as a preamble to discussion of issues pertaining to various 
sections and subsections. These summary statements of the law should not 
be used as a substitute for the statutory text.

                        Section 601--Short Title

    ``This title may be cited as the Fair Credit Reporting Act.''
    The Fair Credit Reporting Act (FCRA) is title VI of the Consumer 
Credit Protection Act, which also includes other Federal statutes 
relating to consumer credit, such as the Truth in Lending Act (title I), 
the Equal Credit Opportunity Act (Title VII), and the Fair Debt 
Collection Practices Act (title VIII).

                    Section 602--Findings and Purpose

    Section 602 recites the Congressional findings regarding the 
significant role of consumer reporting agencies in the nation's 
financial system, and states that the basic purpose of the FCRA is to 
require consumer reporting agencies to adopt reasonable procedures for 
providing information to credit grantors, insurers, employers and others 
in a manner that is fair and equitable to the consumer with regard to 
confidentiality, accuracy, and the proper use of such information.

           Section 603--Definitions and Rules of Construction

    Section 603(a) states that ``definitions and rules of construction 
set forth in this section are applicable for the purposes of this 
title.''
    Section 603(b) defines person to mean ``any individual, partnership, 
corporation, trust, estate, cooperative, association, government or 
governmental subdivision or agency or other entity.''

                      1. Relation to Other Sections

    Certain ``persons'' must comply with the Act. The term consumer 
reporting agency is defined in section 603(f) to include certain 
``persons.'' Section 619 subjects any ``person'' who knowingly and 
willfully obtains information from a consumer reporting agency on a 
consumer under false pretenses to criminal sanctions. Requirements 
relating to report users apply to ``persons.'' Section 606 imposes 
disclosure obligations on ``persons'' who obtain investigative reports 
or cause them to be prepared. Section 615(c) uses the term person to 
denote those subject to disclosure obligations under sections 615(a) and 
615(b).

                               2. Examples

    The term ``person'' includes universities, creditors, collection 
agencies, insurance companies, private investigators, and employers.
    Section 603(c) defines the term consumer to mean ``an individual.''

                      1. Relation to Other Sections

    The term ``consumer'' denotes an individual entitled to the Act's 
protections. Consumer reports, as defined in section 603(d), are reports 
about consumers. A ``consumer'' is entitled to obtain disclosures under 
section 609 from consumer reporting agencies and to take certain steps 
that require such agencies to follow procedures in section 611, 
concerning disputes about the completeness or accuracy of items of 
information in the consumer's file. Disclosures required under section 
606 by one procuring an investigative report must be made to the 
``consumer'' on whom the report is sought. Notifications required by 
section 615 must be provided to ``consumers.'' A ``consumer'' is the 
party entitled to sue for willful noncompliance (section 616) or 
negligent noncompliance (section 617) with the Act's requirements.

                               2. General

    The definition includes only a natural person. It does not include 
artificial entities (e.g., partnerships, corporations, trusts, estates, 
cooperatives, associations) or entities created by statute (e.g., 
governments, governmental subdivisions or agencies).
    Section 603(d) defines consumer report to mean ``any written, oral, 
or other communication of any information by a consumer reporting agency 
bearing on a consumer's credit worthiness, credit standing, credit 
capacity, character, general reputation, personal characteristics, or 
mode of living which is used or expected to be used or collected in 
whole or in part for the purpose of serving as a factor in establishing 
the consumer's eligibility for (1) credit or insurance to be used 
primarily for personal, family, or household purposes, or (2) employment 
purposes, or (3) other purposes authorized under Section 604'' (with 
three specific exclusions).

              1. Relation to ``Consumer Reporting Agency''

    To be a ``consumer report,'' the information must be furnished by a 
``consumer reporting agency'' as that term is defined in

[[Page 496]]

section 603(f). Conversely, the term ``consumer reporting agency'' is 
restricted to persons that regularly engage in assembling or evaluating 
consumer credit information or other information on consumers for the 
purpose of furnishing ``consumer reports'' to third parties. In other 
words, the terms ``consumer reporting agency'' in section 603(f) and 
``consumer report'' in section 603 (d)) are mutually dependent and must 
therefore be construed together. For example, information is not a 
``consumer report'' if the person furnishing the information is clearly 
not a ``consumer reporting agency'' (e.g., if the person furnishing the 
information does not regularly furnish such information for monetary 
fees or on a cooperative nonprofit basis).

               2. Relation to the Applicability of the Act

    If a report is not a ``consumer report,'' then the Act does not 
usually apply to it.\1\  For example, because a commercial credit report 
is not a report on a consumer, it is not a ``consumer report''. 
Therefore, the user need not notify the subject of the name and address 
of the credit bureau when taking adverse action, and the provider need 
not omit ``obsolete'' information, as would be required if the FCRA 
applied.
---------------------------------------------------------------------------

    \1\ However, a creditor denying a consumer's application based on a 
report from a ``third party'' must give the disclosure required by 
section 615(b).
---------------------------------------------------------------------------

      3. Report Concerning a ``Consumer's'' Attributes and History

    A. General. A ``consumer report'' is a report on a ``consumer'' to 
be used for certain purposes involving that ``consumer.''
    B. Artificial entities. Reports about corporations, associations, 
and other collective entities are not consumer reports, and the Act does 
not apply to them.
    C. Reports on businesses for business purposes. Reports used to 
determine the eligibility of a business, rather than a consumer, for 
certain purposes, are not consumer reports and the FCRA does not apply 
to them, even if they contain information on individuals, because 
Congress did not intend for the FCRA to apply to reports used for 
commercial purposes (see 116 Cong. Rec. 36572 (1970) (Conf. Report on 
H.R. 15073)).

 4. ``(C)redit Worthiness, Credit Standing, Credit Capacity, Character, 
 General Reputation, Personal Characteristics, or Mode of Living * * *''

    A. General. To be a ``consumer report,'' the information must bear 
on at least one of the seven characteristics listed in this definition.
    B. Credit guides. Credit guides are listings, furnished by credit 
bureaus to credit grantors, that rate how well consumers pay their 
bills. Such guides are a series of ``consumer reports,'' because they 
contain information which is used for the purpose of serving as a factor 
in establishing the consumers' eligibility for credit. However, if they 
are coded (by identification such as social security number, driver's 
license number, or bank account number) so that the consumer's identity 
is not disclosed, they are not ``consumer reports'' until decoded. (See 
discussion of uncoded credit guides under section 604(3)(A), item 8 
infra.)
    C. Motor vehicle reports. Motor vehicle reports are distributed by 
state motor vehicle departments, generally to insurance companies upon 
request, and usually reveal a consumer's entire driving record, 
including arrests for driving offenses. Such reports are consumer 
reports when they are sold by a Department of Motor Vehicles for 
insurance underwriting purposes and contain information bearing on the 
consumer's ``personal characteristics,'' such as arrest information. The 
Act's legislative history indicates Congress intended the Act to cover 
mutually beneficial exchanges of information between commercial 
enterprises rather than between governmental entities. Accordingly, 
these reports are not consumer reports when provided to other 
governmental authorities involved in licensing or law enforcement 
activities. (See discussion titled ``State Departments of Motor 
Vehicles,'' under section 603(f), item 10 infra.)
    D. Consumer lists. A list of the names of creditworthy individuals, 
or of individuals on whom credit bureaus have derogatory information, is 
a series of ``consumer reports'' because the information bears on credit 
worthiness.
    E. Public record information. A report solely of public record 
information is not a ``consumer report'' unless that information is 
provided by a consumer reporting agency, is collected or used for the 
purposes identified in section 603(d), and bears on at least one of the 
seven characteristics listed in the definition. Public record 
information relating to records of arrest, or the institution or 
disposition of civil or criminal proceedings, bears on one or more of 
these characteristics.
    F. Name and address. A report limited solely to the consumer's name 
and address alone, with no connotations as to credit worthiness or other 
characteristics, does not constitute a ``consumer report,'' if it does 
not bear on any of the seven factors.
    G. Rental characteristics. Reports about rental characteristics 
(e.g., consumers' evictions, rental payment histories, treatment of 
premises) are consumer reports, because they relate to character, 
general reputation, personal characteristics, or mode of living.

[[Page 497]]

5. ``(U)sed or Expected to Be Used or Collected in Whole or in Part for 
   the Purpose of Serving as a Factor in Establishing the Consumer's 
                           Eligibility * * *''

    A. Law enforcement bulletins. Bulletins that are limited to a series 
of descriptions, sometimes accompanied by photographs, of individuals 
who are being sought by law enforcement authorities for alleged crimes 
are not a series of ``consumer reports'' because they have not been 
collected for use in evaluating consumers for credit, insurance, 
employment or other consumer purposes, and it cannot reasonably be 
anticipated they will be used for such purposes.
    B. Directories. Telephone directories and city directories, to the 
extent they only provide information regarding name, address and phone 
number, marital status, home ownership, and number of children, are not 
``consumer reports,'' because the information is not used or expected to 
be used in evaluating consumers for credit, insurance, employment or 
other purposes and does not reflect on credit standing, credit 
worthiness, or any of the other factors. A list of names of individuals 
with checking accounts is not a series of consumer reports because the 
information does not bear on credit worthiness or any of the other 
factors. A trade directory, such as a list of all insurance agents 
licensed to do business in a state, is not a series of consumer reports 
because it is commercial information that would be used for commercial 
purposes.
    C. Use of prior consumer report in preparation. A report that would 
not otherwise be a consumer report may be a consumer report, 
notwithstanding the purpose for which it is furnished, if it includes a 
prior consumer report or information from consumer report files, because 
it would contain some information ``collected in whole or in part'' for 
consumer reporting purposes. For example, an insurance claims report 
would be a consumer report if a consumer report (or information from a 
consumer report) were used to prepare it. (See discussion, infra, in 
item 6-C under this subsection.)
    D. Use of reports for purposes not anticipated by the reporting 
party. The question arises whether a report that is not otherwise a 
consumer report is subject to the FCRA because the recipient 
subsequently uses the report for a permissible purpose. If the reporting 
party's procedures are such that it neither knows of nor should 
reasonably anticipate such use, the report is not a consumer report. If 
a reporting party has taken reasonable steps to insure that the report 
is not used for such a purpose, and if it neither knows of, nor can 
reasonably anticipate such use, the report should not be deemed a 
consumer report by virtue of uses beyond the reporting party's control. 
A reporting party might establish that it does not reasonably anticipate 
such use of the report by requiring the recipient to certify that the 
report will not be used for one of the purposes listed in section 604. 
(Such procedure may be compared to the requirement in section 607(a), 
discussed infra, that consumer reporting agencies furnishing consumer 
reports require that prospective users certify the purposes for which 
the information is sought and certify that the information will be used 
for no other purpose.) For example, a claims reporting service could use 
such a certification to avoid having its insurance claims reports deemed 
``consumer reports'' if the report recipient/insurer were to use the 
report later for ``underwriting purposes'' under section 604(3)(C), such 
as terminating insurance coverage or raising the premium.

    6. ``(E)stablishing the Consumer's Eligibility for (1) Credit or 
    Insurance to Be Used Primarily for Personal, Family or Household 
 Purposes, or (2) Employment Purposes, or (3) Other Purposes Authorized 
                       Under Section 60[hairsp]4''

    A. Relation to section 604. Because section 603(d)(3) refers to 
``purposes authorized under section 604'' (often described as 
``permissible purposes'' of consumer reports), some of which overlap 
purposes enumerated in section 603 (e.g., 603(d)(1) and 603(d)(2)), 
sections 603 and 604 must be construed together, to determine what are 
``consumer reports'' and ``permissible purposes'' under the two 
sections. See discussion infra, under section 604.
    B. Commercial credit or insurance. A report on a consumer for credit 
or insurance in connection with a business operated by the consumer is 
not a ``consumer report,'' and the Act does not apply to it.
    C. Insurance claims reports. (It is assumed that information in 
prior consumer reports is not used in claims reports. See discussion, 
[hairsp]supra, in item 5-C under this subsection.) Reports provided to 
insurers by claims investigation services solely to determine the 
validity of insurance claims are not consumer reports, because section 
604(3)(C) specifically sets forth only underwriting (not claims) as an 
insurance-related purpose, and section 603(d)(1) deals specifically with 
eligibility for insurance and no other insurance-related purposes. To 
construe section 604(3)(E) as including reports furnished in connection 
with insurance claims would be to disregard the specific language of 
sections 604(3)(C) and 603(d)(1).
    D. Scope of employment purpose. A report that is used or is expected 
to be used or collected in whole or in part in connection with 
establishing an employee's eligibility for ``promotion, reassignment or 
retention,'' as well as to evaluate a job applicant, is a consumer 
report because sections 603(d)(2) and 604(3)(B) use the term 
``employment purposes,'' which section 603(h) defines to include these 
situations.

[[Page 498]]

    E. Bad check lists. A report indicating that an individual has 
issued bad checks, provided by printed list or otherwise, to a business 
for use in determining whether to accept consumers' checks tendered in 
transactions primarily for personal, family or household purposes, is a 
consumer report. The information furnished bears on consumers' 
character, general reputation and personal characteristics, and it is 
used or expected to be used in connection with business transactions 
involving consumers.
    F. Tenant screening reports. A report used to determine whether to 
rent a residence to a consumer is a consumer report, because it is used 
for a business transaction that the consumer wishes to enter into for 
personal, family or household purposes.

        7. Exclusions From the Definition of ``Consumer Report''

    A. ``(Any) reports containing information solely as to transactions 
or experiences between the consumer and the person making the 
report;''--(1) Examples of Sources. The exemption applies to reports 
limited to transactions or experiences between the consumer and the 
entity making the report (e.g., retail stores, hospitals, present or 
former employers, banks, mortgage servicing companies, credit unions, or 
universities).
    (2) Information beyond the reporting entity's own transactions or 
experiences with the consumer.
    The exemption does not apply to reports by these entities of 
information beyond their own transactions or experiences with the 
consumer. An example is a creditor's or an insurance company's report of 
the reasons it cancelled credit or insurance, based on information from 
an outside source.

           (3) Opinions Concerning Transactions or Experiences

    The exemption applies to reports that are not limited to the facts, 
but also include opinions (e.g., use of the term ``slow pay'' to 
describe a consumer's transactions with a creditor), as long as the 
facts underlying the opinions involve only transactions or experiences 
between the consumer and the reporting entity.
    B. ``(A)ny authorization or approval of a specific extension of 
credit directly or indirectly by the issuer of a credit card or similar 
device;''--(1) General. The exemption applies to a credit or debit card 
issuer's written, oral, or electronic communication of its decision 
whether or not to authorize a charge, in response to a request from a 
merchant or other party that the consumer has asked to honor the card.
    C. ``(A)ny report in which a person who has been requested by a 
third party to make a specific extension of credit directly or 
indirectly to the consumer conveys his decision with respect to such 
request, if the third party advises the consumer of the name and address 
of the person to whom the request was made and such person makes the 
disclosures to the consumer required under section 615.''--(1) General. 
The exemption covers retailers' attempts to obtain credit for their 
individual customers from an outside source (such as a bank or a finance 
company). The communication by the financial institution of its decision 
whether to extend credit is not a ``consumer report'' if the retailer 
informs the customer of the name and address of the financial 
institution to which the application or contract is offered and the 
financial institution makes the disclosures required by section 615 of 
the Act. Such disclosures must be made only when there is a denial of, 
or increase in the charge for, credit or insurance. (See discussion of 
section 615, item 10, infra.)
    (2) Information included in the exemption.
    The exemption is not limited to a simple ``yes'' or ``no'' response, 
but includes the information constituting the basis for the credit 
denial, because it applies to ``any report.''
    (3) How third party creditors can insure that the exemption applies.
    Creditors, who are requested by dealers or merchants to make such 
specific extensions of credit, can assure that communication of their 
decision to the dealer or merchant will be exempt under this section 
from the term ``consumer report,'' by having written agreements that 
require such parties to inform the consumer of the creditor's name and 
address and by complying with any applicable provisions of section 615.
    Section 603(e) defines ``investigative consumer report'' as ``a 
consumer report or portion thereof in which information on a consumer's 
character, general reputation, personal characteristics, or mode of 
living is obtained through personal interviews with neighbors, friends, 
or associates of the consumer reported on or with others with whom he is 
acquainted or who may have knowledge concerning any such items of 
information. However, such information shall not include specific 
factual information on a consumer's credit record obtained directly from 
a creditor of the consumer or from a consumer reporting agency when such 
information was obtained directly from a creditor of the consumer or 
from the consumer.''

                      1. Relation to Other Sections

    The term investigative consumer report denotes a subset of 
``consumer report'' for which the Act imposes additional requirements on 
recipients and consumer reporting agencies. Persons procuring 
``investigative consumer reports'' must make certain disclosures to the 
consumers who are the subjects of the reports, as required by section

[[Page 499]]

606. Consumer reporting agencies must comply with section 614, when 
furnishing ``investigative consumer reports'' containing adverse 
information that is not a matter of public record. Consumer reporting 
agencies making disclosure to consumers pursuant to section 609 are not 
required to disclose ``sources of information acquired solely for use in 
preparing an investigative consumer report and actually used for no 
other purpose.''

                               2. General

    An ``investigative consumer report'' is a type of ``consumer 
report'' that contains information that is both related to a consumer's 
character, general reputation, personal characteristics or mode of 
living and obtained by personal interviews with the consumer's 
neighbors, friends, associates or others.

                     3. Types of Sources Interviewed

    A report consisting of information from any third party concerning 
the subject's character (reputation, etc.) may be an investigative 
consumer report because the phrase ``obtained through personal 
interviews * * * with others'' includes any source that is a third party 
interviewee. A report containing interview information obtained solely 
from the subject is not an ``investigative consumer report.''

                         4. Telephone Interviews

    A consumer report that contains information on a consumer's 
``character, general reputation, personal characteristics or mode of 
living'' obtained through telephone interviews with third parties is an 
``investigative consumer report,'' because ``personal interviews'' 
includes interviews conducted by telephone as well as in person.

                       5. Identity of Interviewer

    A consumer report is an ``investigative consumer report'' if 
personal interviews are used to obtain information reported on a 
consumer's ``character, general reputation, personal characteristics or 
mode of living,'' regardless of who conducted the interview.

  6. Noninvestigative Information in ``Investigative Consumer Reports''

    An ``investigative consumer report'' may also contain 
noninvestigative information, because the definition includes reports, a 
``portion'' of which are investigative reports.

          7. Exclusions From ``Investigative Consumer Reports''

    A report that consists solely of information gathered from 
observation by one who drives by the consumer's residence is not an 
``investigative consumer report,'' because it contains no information 
from ``personal interviews.''
    Section 603(f) defines ``consumer reporting agency'' as ``any person 
which, for monetary fees, dues, or on a cooperative nonprofit basis, 
regularly engages in whole or in part in the practice of assembling or 
evaluating consumer credit information or other information on consumers 
for the purpose of furnishing consumer reports to third parties, and 
which uses any means or facility of interstate commerce for the purpose 
of preparing or furnishing consumer reports.''

                      1. Relation to Other Sections

    A. Duties imposed on ``consumer reporting agencies.'' The Act 
imposes a number of duties on ``consumer reporting agencies.'' They must 
have permissible purposes to furnish consumer reports (section 604), 
avoid furnishing obsolete adverse information in certain consumer 
reports (sections 605, 607(a)), adopt reasonable procedures to assure 
privacy (section 604, 607(a)), and accuracy (section 607(b)) of consumer 
reports, provide only limited disclosures to governmental agencies 
(section 608), provide consumers certain disclosures upon request 
(sections 609 and 610) at no cost or for a reasonable charge (section 
612), follow certain procedures if a consumer disputes the completeness 
or accuracy of any item of information contained in his file (section 
611), and follow certain procedures in reporting public record 
information for employment purposes or when reporting adverse 
information other than public record information in investigative 
consumer reports (sections 613, 614).
    B. Relation to ``consumer reports.'' The term consumer reporting 
agency, as defined in section 603(f), includes certain persons who 
assemble or evaluate information on individuals for the purpose of 
furnishing ``consumer reports'' to third parties. Conversely, section 
603(d) defines the term consumer report to mean the communication of 
certain information by a ``consumer reporting agency.'' In other words, 
the terms ``consumer report'' in section 603(d) and ``consumer reporting 
agency'' as defined in section 603(f) are defined in a mutually 
dependent manner and must therefore be construed together. For example, 
a party is not a ``consumer reporting agency'' if it provides only 
information that is excepted from the definition of ``consumer report'' 
under section 603(d), such as reports limited to the party's own 
transactions or experiences with a consumer, or credit information on 
organizations.

                           2. Isolated Reports

    Parties that do not ``regularly'' engage in assembling or evaluating 
information for the purpose of furnishing consumer reports to third 
parties are not consumer reporting

[[Page 500]]

agencies. For example, a creditor that furnished information on a 
consumer to a governmental entity in connection with one of its 
investigations, would not ``regularly'' be making such disclosure for a 
fee or on a cooperative nonprofit basis, and therefore would not become 
a consumer reporting agency, even if the information exceeded the 
creditor's transactions or experiences with the consumer.

             3. Provision of Credit Report to Report Subject

    A consumer report user does not become a consumer reporting agency 
by regularly giving a copy of the report, or otherwise disclosing it, to 
the consumer who is the subject of the report, because it is not 
disclosing the information to a ``third party.''

                          4. Employment Agency

    An employment agency that routinely obtains information on job 
applicants from their former employers and furnishes the information to 
prospective employers is a consumer reporting agency.

           5. Information Compiled for Insurance Underwriting

    A business that compiles claim payment histories on individuals from 
insurers and furnishes them to insurance companies for use in 
underwriting decisions concerning those individuals is a consumer 
reporting agency.

             6. Private Investigators and Detective Agencies

    Private investigators and detective agencies that regularly obtain 
consumer reports and furnish them to clients may thereby become consumer 
reporting agencies.

                  7. Collection Agencies and Creditors

    Collection agencies and creditors become consumer reporting agencies 
if they regularly furnish information beyond their transactions or 
experiences with consumers to third parties for use in connection with 
consumers' transactions.

                   8. Joint Users of Consumer Reports

    Entities that share consumer reports with others that are jointly 
involved in decisions for which there are permissible purposes to obtain 
the reports may be ``joint users'' rather than consumer reporting 
agencies. For example, if a lender forwards consumer reports to 
governmental agencies administering loan guarantee programs (or to other 
prospective loan insurers or guarantors), or to other parties whose 
approval is needed before it grants credit, or to another creditor for 
use in considering a consumer's loan application at the consumer's 
request, the lender does not become a consumer reporting agency by 
virtue of such action. An agent or employee that obtains consumer 
reports does not become a consumer reporting agency by sharing such 
reports with its principal or employer in connection with the purposes 
for which the reports were initially obtained.

                            9. Loan Exchanges

    Loan exchanges, which are generally owned and operated on a 
cooperative basis by consumer finance companies, constitute a mechanism 
whereby each member furnishes the exchange information concerning the 
full identity and loan amount of each of its borrowers, and receives 
information from the exchange concerning the number and types of 
outstanding loans for each of its applicants. A loan exchange or any 
other exchange that regularly collects information bearing on decisions 
to grant consumers credit or insurance for personal, family or household 
purposes, or employment, is a ``consumer reporting agency.''

                 10. State Departments of Motor Vehicles

    State motor vehicle departments are ``consumer reporting agencies'' 
if they regularly furnish motor vehicle reports containing information 
bearing on the consumer's ``personal characteristics,'' such as arrest 
information, to insurance companies for insurance underwriting purposes. 
(See discussion of [hairsp]motor vehicle reports under section 603(d), 
item 4c supra.)

                          11. Federal Agencies

    The Office of Personnel Management collects and files data 
concerning current and potential employees of the Federal Government and 
transmits that information to other government agencies for employment 
purposes. Because Congress did not intend that the FCRA apply to the 
Office of Personnel Management and similar federal agencies (see 116 
Cong. Rec. 36576 (1970) (remarks of Rep. Brown)), no such agency is a 
``consumer reporting agency.''

                   12. Credit Application Information

    A creditor that provides information from a consumer's application 
to a credit bureau, for verification as part of the creditor's 
evaluation process that includes obtaining a report on the consumer from 
that credit bureau, does not thereby become a ``consumer reporting 
agency,'' because the creditor does not provide the information for 
``fees, dues, or on a cooperative nonprofit basis,'' but rather pays the 
bureau to verify the information when it provides a consumer report on 
the applicant.
    Section 603(g) defines file, when used in connection with 
information on any consumer, to mean ``all of the information on

[[Page 501]]

that consumer recorded and retained by a consumer reporting agency 
regardless of how the information is stored.''

                      1. Relation to Other Sections

    Consumer reporting agencies are required to make disclosures of all 
information in their ``files'' to consumers upon request (section 609) 
and to follow reinvestigation procedures if the consumer disputes the 
completeness or accuracy of any item of information contained in his 
``file'' (section 611).

                               2. General

    The term file denotes all information on the consumer that is 
recorded and retained by a consumer reporting agency that might be 
furnished, or has been furnished, in a consumer report on that consumer.

                             3. Audit Trail

    The term ``file'' does not include an ``audit trail'' (a list of 
changes made by a consumer reporting agency to a consumer's credit 
history record, maintained to detect fraudulent changes to that record), 
because such information is not furnished in consumer reports or used as 
a basis for preparing them.

                          4. Other Information

    The term ``file'' does not include information in billing records or 
in the consumer relations folder that a consumer reporting agency opens 
on a consumer who obtains disclosures or files a dispute, if the 
information has not been used in a consumer report and would not be used 
in preparing one.
    Section 603(h) defines employment purposes to mean ``a report used 
for the purpose of evaluating a consumer for employment, promotion, 
reassignment or retention as an employee.''

                      1. Relation to Other Sections

    The term employment purposes is used as part of the definition of 
``consumer reports'' (section 603(d)(2)) and as a permissible purpose 
for the furnishing of consumer reports (section 604(3)(B)). Where an 
investigative consumer report is to be used for ``employment purposes'' 
for which a consumer has not specifically applied, section 606(a)(2) 
provides that the notice otherwise required by section 606(a)(1) need 
not be sent. When a consumer reporting agency furnishes public record 
information in reports ``for employment purposes,'' it must follow the 
procedure set out in section 613.

                         2. Security Clearances

    A report in connection with security clearances of a government 
contractor's employees would be for ``employment purposes'' under this 
section.
    Section 603(i) defines medical information to mean ``information or 
records obtained, with the consent of the individual to whom it relates, 
from licensed physicians or medical practitioners, hospitals, clinics, 
or other medical or medically related facilities.''

                      1. Relation to Other Sections

    Under section 609(a)(1), a consumer reporting agency must, upon the 
consumer's request and proper identification, disclose the nature and 
substance of all information in its files on the consumer, except 
``medical information.''

                 2. Information From Non-medical Sources

    Information from non-medical sources such as employers, is not 
``medical information.''

              Section 604--Permissible Purposes of Reports

    ``A consumer reporting agency may furnish a consumer report under 
the following circumstances and no other: * * *''

                       1. Relation to Section 603

    Sections 603(d)(3) and 604 must be construed together to determine 
what are ``permissible purposes,'' because section 603(d)(3) refers to 
``purposes authorized under section 604'' (often described as 
``permissible purposes'' of consumer reports), and some purposes are 
enumerated in section 603 (e.g., sections 603(d)(1) and 603(d)(2)). 
Subsections of sections 603 and 604 that specifically set forth 
``permissible purposes'' relating to credit, insurance and employment, 
are the only subsections that cover ``permissible purposes'' relating to 
those three areas. Section 604(3)(E), a general subsection, is limited 
to purposes not otherwise addressed in section 604(3) (A)-(D).
    A. Credit. Sections 603(d)(1)--which defines ``consumer report'' to 
include certain reports for the purpose of serving as a factor in 
establishing the consumer's eligibility for credit or insurance 
primarily for personal, family, or household purposes--and 604(3)(A) 
must be read together as fully describing permissible purposes involving 
credit for obtaining consumer reports. Accordingly, section 604(3)(A) 
permits the furnishing of a consumer report for use in connection with a 
credit transaction involving the consumer, primarily for personal, 
family or household purposes, and involving the extension of credit to, 
or review or collection of an account of, the consumer.
    B. Insurance. Sections 603(d)(1) and 604(3)(C) must be read together 
as describing the only permissible insurance purposes for obtaining 
consumer reports. Accordingly, section 604(3)(C) permits the furnishing 
of a consumer report, provided it is for use in connection with the 
underwriting of insurance

[[Page 502]]

involving the consumer, primarily for personal, family, or household 
purposes.
    C. Employment. Employment is covered exclusively by sections 
603(d)(2) and 604(3)(B), and by section 603(h) (which defines 
``employment purposes''). Therefore, ``permissible purposes'' relating 
to employment include reports used for evaluating a consumer ``for 
employment, promotion, reassignment or retention as an employee.''
    D. Other purposes. ``Other purposes'' are referred to in section 
603(d)(3) and covered by section 604(3)(E), as well as sections 604(1), 
604(2) and 604(3)(D) (which contain specific purposes not involving 
credit, insurance, employment). Permissible purposes relating to section 
604(3)(E) are limited to transactions that consumers enter into 
primarily for personal, family or household purposes (excluding credit, 
insurance or employment, which are specifically covered by other 
subsections discussed above). The FCRA does not cover reports furnished 
for transactions that consumers enter into primarily in connection with 
businesses they operate (e.g., a consumer's rental of equipment for use 
in his retail store).

                      2. Relation to Other Sections

    A. Section 607(a). Section 607(a) requires consumer reporting 
agencies to keep information confidential by furnishing consumer reports 
only for purposes listed under section 604, and to follow specified, 
reasonable procedures to achieve this end. Section 619 provides criminal 
sanctions against any person who knowingly and willfully obtains 
information on a consumer from a consumer reporting agency under false 
pretenses.
    B. Section 608. Section 608 allows ``consumer reporting agencies'' 
to furnish governmental agencies specified identifying information 
concerning consumers, notwithstanding the limitations of section 604.
    Section 604(1)--A consumer reporting agency may furnish a consumer 
report ``in response to the order of a court having jurisdiction to 
issue such an order.''

                               1. Subpoena

    A subpoena, including a grand jury subpoena, is not an ``order of a 
court'' unless signed by a judge.

                   2. Internal Revenue Service Summons

    An I.R.S. summons is an exception to the requirement that an order 
be signed by a judge before it constitutes an ``order of a court'' under 
this section, because a 1976 revision to Federal statutes (26 U.S.C. 
7609) specifically requires a consumer reporting agency to furnish a 
consumer report in response to an I.R.S. summons upon receipt of the 
designated I.R.S. certificate that the consumer has not filed a timely 
motion to quash the summons.
    Section 604(2)--A consumer reporting agency may furnish a consumer 
report ``in accordance with the written instructions of the consumer to 
whom it relates.''

                 1. No Other Permissible Purpose Needed

    If the report subject furnishes written authorization for a report, 
that creates a permissible purpose for furnishing the report.

                      2. Refusal to Furnish Report

    The consumer reporting agency may refuse to furnish the report 
because the statute is permissive, not mandatory. (Requirements that 
consumer reporting agencies make disclosure to consumers (as contrasted 
with furnishing reports to users) are discussed under sections 609 and 
610, infra.)
    Section 604(3)(A)--A consumer reporting agency may issue a consumer 
report to ``a person which it has reason to believe * * * intends to use 
the information in connection with a credit transaction involving the 
consumer on whom the information is to be furnished and involving the 
extension of credit to, or review or collection of an account of, the 
consumer;''

 1. Reports Sought in Connection with the ``Review or Collection of an 
                                Account''

    A. Reports for collection. A collection agency has a permissible 
purpose under this section to receive a consumer report on a consumer 
for use in attempting to collect that consumer's debt, regardless of 
whether that debt is assigned or referred for collection. Similarly, a 
detective agency or private investigator, attempting to collect a debt 
owed by a consumer, would have a permissible purpose to obtain a 
consumer report on that individual for use in collecting that debt. An 
attorney may obtain a consumer report under this section on a consumer 
for use in connection with a decision whether to sue that individual to 
collect a credit account.
    B. Unsolicited reports. A consumer reporting agency may not send an 
unsolicited consumer report to the recipient of a previous report on the 
same consumer, because the recipient will not necessarily have a 
permissible purpose to receive the unsolicited report. \2\ For example, 
the recipient may have rejected the consumer's application or ceased to 
do business with the consumer. (See also discussion in section 607, item 
2G, infra.)
---------------------------------------------------------------------------

    \2\ Of course a consumer reporting agency must furnish notifications 
required by section 611(d), upon the consumer's requests, to prior 
recipients of reports containing disputed information that is deleted or 
that is the subject of a dispute statement under section 611(b).

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[[Page 503]]

                          2. Judgment Creditors

    A judgment creditor has a permissible purpose to receive a consumer 
report on the judgment debtor for use in connection with collection of 
the judgment debt, because it is in the same position as any creditor 
attempting to collect a debt from a consumer who is the subject of a 
consumer report.

                         3. Child Support Debts

    A district attorney's office or other child support agency may 
obtain a consumer report in connection with enforcement of the report 
subject's child support obligation, established by court (or quasi-
judicial administrative) orders, since the agency is acting as or on 
behalf of the judgment creditor, and is, in effect, collecting a debt. 
However, a consumer reporting agency may not furnish consumer reports to 
child support agencies seeking to establish paternity or the duty to pay 
child support.

                           4. Tax Obligations

    A tax collection agency has no general permissible purpose to obtain 
a consumer report to collect delinquent tax accounts, because this 
subsection applies only to collection of ``credit'' accounts. However, 
if a tax collection agency acquired a tax lien having the same effect as 
a judgment or obtained a judgment, it would be a judgment creditor and 
would have a permissible purpose for obtaining a consumer report on the 
consumer who owed the tax. Similarly, if a consumer taxpayer entered an 
agreement with a tax collection agency to pay taxes according to some 
timetable, that agreement would create a debtor-creditor relationship, 
thereby giving the agency a permissible purpose to obtain a consumer 
report on that consumer.

                 5. Information on an Applicant's Spouse

    A. Permissible purpose. A creditor may request any information 
concerning an applicant's spouse if that spouse will be permitted to use 
the account or will be contractually liable upon the account, or the 
applicant is relying on the spouse's income as a basis for repayment of 
the credit requested. A creditor may request any information concerning 
an applicant's spouse if (1) the state law doctrine of necessaries 
applies to the transaction, or (2) the applicant resides in a community 
property state, or (3) the property upon which the applicant is relying 
as a basis for repayment of the credit requested is located in such a 
state, or (4) the applicant is acting as the agent of the nonapplicant 
spouse.
    B. Lack of permissible purpose. If the creditor receives information 
clearly indicating that the applicant is not acting as the agent of the 
nonapplicant spouse, and that the applicant is relying only on separate 
property to repay the credit extended, and that the state law doctrine 
of necessaries does not apply to the transaction and that the applicant 
does not reside in a community property state, the creditor does not 
have a permissible purpose for obtaining a report on a nonapplicant 
spouse. A permissible purpose for making a consumer report on a 
nonapplicant spouse can never exist under the FCRA, where Regulation B, 
issued under the Equal Credit Opportunity Act (12 CFR 202), prohibits 
the creditor from requesting information on such spouse. There is no 
permissible purpose to obtain a consumer report on a nonapplicant former 
spouse or on a nonapplicant spouse who has legally separated or 
otherwise indicated an intent to legally disassociate with the marriage. 
(This does not preclude reporting a prior joint credit account of former 
spouses for which the spouse that is the subject of the report is still 
contractually liable. See discussion in section 607, item 3-D infra.)

                             6. Prescreening

    Prescreening means the process whereby a consumer reporting agency 
compiles or edits a list of consumers who meet specific criteria and 
provides this list to the client or a third party (such as a mailing 
service) on behalf of the client for use in soliciting these consumers 
for the client's products or services. The process may also include 
demographic or other analysis of the consumers on the list (e.g., use of 
census tract data reflecting real estate values) by the consumer 
reporting agency or by a third party employed for that purpose (by 
either the agency or its client) before the list is provided to the 
consumer reporting agency's client. In such situations, the client's 
creditworthiness criteria may be provided only to the consumer reporting 
agency and not to the third party performing the demographic analysis. 
The consumer reporting agency that performs a ``prescreening'' service 
may furnish a client with several different lists of consumers who meet 
different sets of creditworthiness criteria supplied by the client, who 
intends to make different credit offers (e.g., various credit limits) to 
consumers who meet the different criteria.
    A prescreened list constitutes a series of consumer reports, because 
the list conveys the information that each consumer named meets certain 
criteria for creditworthiness. Prescreening is permissible under the 
FCRA if the client agrees in advance that each consumer whose name is on 
the list after prescreening will receive an offer of credit. In these 
circumstances, a permissible purpose for the prescreening service exists 
under this section, because of the client's present intent to grant 
credit to all consumers on the final list, with the result that the 
information is used ``in connection with a credit transaction involving 
the consumer on whom

[[Page 504]]

the information is to be furnished and involving the extension of credit 
to * * * the consumer.''

                 7. Seller of Property Extending Credit

    A seller of property has a permissible purpose under this subsection 
to obtain a consumer report on a prospective purchaser to whom he is 
planning to extend credit.

                        8. Uncoded Credit Guides

    A consumer reporting agency may not furnish an uncoded credit guide, 
because the recipient does not have a permissible purpose to obtain a 
consumer report on each consumer listed. (As discussed under section 
603(d), item 4 [hairsp]supra, credit guides are listings that credit 
bureaus furnish to credit grantors, rating how consumers pay their 
bills. Such guides are a series of ``consumer reports'' on the 
``consumers'' listed therein, unless coded so that the consumer's 
identity is not disclosed.)

                       9. Liability for Bad Checks

    A party attempting to recover the amount due on a bad check is 
attempting to collect a debt and, therefore, has a permissible purpose 
to obtain a consumer report on the consumer who wrote it, and on any 
other consumer who is liable for the amount of that check under 
applicable state law.
    Section 604(3)(B)--A consumer reporting agency may issue a consumer 
report to ``a person which it has reason to believe * * * intends to use 
the information for employment purposes;''

                          1. Current Employees

    An employer may obtain a consumer report on a current employee in 
connection with an investigation of the disappearance of money from 
employment premises, because ``retention as an employee'' is included in 
the definition of ``employment purposes'' (section 603(h)).

          2. Consumer Reports on Applicants and Non-applicants

    An employer may obtain a consumer report for use in evaluating the 
subject's application for employment but may not obtain a consumer 
report to evaluate the application of a consumer who is not the subject 
of the report.

                             3. Grand Jurors

    The fact that grand jurors are usually paid a stipend for their 
service does not provide a district attorney's office a permissible 
purpose for obtaining consumer reports on them, because such service is 
a duty, not ``employment.''
    Section 604(3)(C)--A consumer reporting agency may issue a consumer 
report to ``a person which it has reason to believe * * * intends to use 
the information in connection with the underwriting of insurance 
involving the consumer;''

                             1. Underwriting

    An insurer may obtain a consumer report to decide whether or not to 
issue a policy to the consumer, the amount and terms of coverage, the 
duration of the policy, the rates or fees charged, or whether or not to 
renew or cancel a policy, because these are all ``underwriting'' 
decisions.

                                2. Claims

    An insurer may not obtain a consumer report for the purpose of 
evaluating a claim (to ascertain its validity or otherwise determine 
what action should be taken), because permissible purposes relating to 
insurance are limited by this section to ``underwriting'' purposes.
    Section 604(3)(D)--A consumer reporting agency may issue a consumer 
report to ``a person which it has reason to believe * * * intends to use 
the information in connection with a determination of the consumer's 
eligibility for a license or other benefit granted by a governmental 
instrumentality required by law to consider an applicant's financial 
responsibility or status * * *''

                        1. Appropriate recipient

    Any party charged by law (including a rule or regulation having the 
force of law) with responsibility for assessing the consumer's 
eligibility for the benefit (not only the agency directly responsible 
for administering the benefit) has a permissible purpose to receive a 
consumer report. For example, a district attorney's office or social 
services bureau, required by law to consider a consumer's financial 
status in determining whether that consumer qualifies for welfare 
benefits, has a permissible purpose to obtain a report on the consumer 
for that purpose. Similarly, consumer reporting agencies may furnish 
consumer reports to townships on consumers whose financial status the 
townships are required by law to consider in determining the consumers' 
eligibility for assistance, or to professional boards (e.g., bar 
examiners) required by law to consider such information on applicants 
for admission to practice.

                       2. Inappropriate Recipient

    Parties not charged with the responsibility of determining a 
consumer's eligibility for a license or other benefit, for example, a 
party competing for an FCC radio station construction permit, would not 
have a permissible purpose to obtain a consumer report on that consumer.

[[Page 505]]

                    3. Initial or Continuing Benefit

    The permissible purpose includes the determination of a consumer's 
continuing eligibility for a benefit, as well as the evaluation of a 
consumer's initial application for a benefit. If the governmental body 
has reason to believe a particular consumer's eligibility is in doubt, 
or wishes to conduct random checks to confirm eligibility, it has a 
permissible purpose to receive a consumer report.
    Section 604(3)(E)--A consumer reporting agency may issue a consumer 
report to ``a person which it has reason to believe * * * otherwise has 
a legitimate business need for the information in connection with a 
business transaction involving the consumer.''

           1. Relation to Other Subsections of Section 604(3)

    The issue of whether credit, employment, or insurance provides a 
permissible purpose is determined exclusively by reference to subsection 
(A), (B), or (C), respectively.

                       2. Commercial Transactions

    The term business transaction in this section means a business 
transaction with a consumer primarily for personal, family, or household 
purposes. Business transactions that involve purely commercial purposes 
are not covered by the FCRA.

                     3. ``Legitimate Business Need''

    Under this subsection, a party has a permissible purpose to obtain a 
consumer report on a consumer for use in connection with some action the 
consumer takes from which he or she might expect to receive a benefit 
that is not more specifically covered by subsections (A), (B), or (C). 
For example, a consumer report may be obtained on a consumer who applies 
to rent an apartment, offers to pay for goods with a check, applies for 
a checking account or similar service, seeks to be included in a 
computer dating service, or who has sought and received over-payments of 
government benefits that he has refused to return.

                              4. Litigation

    The possibility that a party may be involved in litigation involving 
a consumer does not provide a permissible purpose for that party to 
receive a consumer report on such consumer under this subsection, 
because litigation is not a ``business transaction'' involving the 
consumer. Therefore, potential plaintiffs may not always obtain reports 
on potential defendants to determine whether they are worth suing. The 
transaction that gives rise to the litigation may or may not provide a 
permissible purpose. A party seeking to sue on a credit account would 
have a permissible purpose under section 604(3)(A). (That section also 
permits judgment creditors and lien creditors to obtain consumer reports 
on judgment debtors or individuals whose property is subject to the lien 
creditor's lien.) If that transaction is a business transaction 
involving the consumer, there is a permissible purpose. If the 
litigation arises from a tort, there is no permissible purpose. 
Similarly, a consumer report may not be obtained solely for use in 
discrediting a witness at trial or for locating a witness. This section 
does not permit consumer reporting agencies to furnish consumer reports 
for the purpose of locating a person suspected of committing a crime. 
(As stated in the discussion of section 608 infra (item 2), section 608 
permits the furnishing of specified, limited identifying information to 
governmental agencies, notwithstanding the provisions of section 604.)

                        5. Impermissible Purposes

    A consumer reporting agency may not furnish a consumer report to 
satisfy a requester's curiosity, or for use by a news reporter in 
preparing a newspaper or magazine article.

                                6. Agents

    A. General. An agent \3\ of a party with a ``permissible purpose'' 
may obtain a consumer report on behalf of his principal, where he is 
involved in the decision that gives rise to the permissible purpose. 
Such involvement may include the agent's making a decision (or taking 
action) for the principal, or assisting the principal in making the 
decision (e.g., by evaluating information). In these circumstances, the 
agent is acting on behalf of the principal. In some cases, the agent and 
principal are referred to as ``joint users.'' See discussion in section 
603(f), supra (item 8).
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    \3\ Of course agents and principals are bound by the Act.
---------------------------------------------------------------------------

    B. Real estate agent. A real estate agent may obtain a consumer 
report on behalf of a seller, to evaluate the eligibility as a 
prospective purchaser of a subject who has expressed an interest in 
purchasing property from the seller.
    C. Private detective agency. A private detective agency may obtain a 
consumer report as agent for its client while investigating a report 
subject that is a client's prospective employee, or in connection with 
advising a client concerning a business transaction with the report 
subject or in attempting to collect a debt owed its client by the 
subject of the report. In these circumstances, the detective agency is 
acting on behalf of its client.
    D. Rental clearance agency. A rental clearance agency that obtains 
consumer reports to assist owners of residential properties in

[[Page 506]]

screening consumers as tenants, has a permissible purpose to obtain the 
reports, if it uses them in applying the landlord's criteria to approve 
or disapprove the subjects as tenant applicants. Similarly, an apartment 
manager investigating applicants for apartment rentals by a landlord may 
obtain consumer reports on these applicants.
    E. Attorney. An attorney collecting a debt for a creditor client, 
including a party suing on a debt or collecting on behalf of a judgment 
creditor or lien creditor, has a permissible purpose to obtain a 
consumer report on the debtor to the same extent as the client.

                          Section 604--General

 1. Furnishing of Consumer Reports to Other Consumer Reporting Agencies

    A consumer reporting agency may furnish a consumer report to another 
consumer reporting agency for it to furnish pursuant to a subscriber's 
request. In these circumstances, one consumer reporting agency is acting 
on behalf of another.

                   2. Consumer's Permission not Needed

    When permissible purposes exist, parties may obtain, and consumer 
reporting agencies may furnish, consumer reports without the consumers' 
permission or over their objection. Similarly, parties may furnish 
information concerning their transactions with consumers to consumer 
reporting agencies and others, and consumer reporting agencies may 
gather information, without consumers' permission.

           3. User's Disclosure of Report to Subject Consumer

    The FCRA does not prohibit a consumer report user from giving a copy 
of the report, or othervise disclosing it, to the consumer who is the 
subject of the report.

                    Section 605--Obsolete Information

    ``(a) Except as authorized under subsection (b), no consumer 
reporting agency may make any consumer report containing any of the 
following items of information * * *:
    (b) The provisions of subsection (a) are not applicable in the case 
of any consumer credit report to be used in connection with--
    (1) a credit transaction involving, or which may reasonably be 
expected to involve, a principal amount of $50,000 or more;
    (2) the underwriting of life insurance involving, or which may 
reasonably be expected to involve, a face amount of $50,000 or more; or
    (3) the employment of any individual at an annual salary which 
eguals, or which may reasonably be expected to egual $20,000, or more.''

                               1. General

    Section 605(a) provides that most adverse information more than 
seven years old may not be reported, except in certain circumstances set 
out in section 605(b). With respect to delinquent accounts, accounts 
placed for collection, and accounts charged to profit and loss, there 
are many dates that could be deemed to commence seven year reporting 
periods. The discussion in subsections (a)(2), (a)(4), and (a)(6) is 
intended to set forth a clear, workable rule that effectuates 
Congressional intent.

                        2. Favorable Information

    The Act imposes no time restriction on reporting of information that 
is not adverse.

                  3. Retention of Information in Files

    Consumer reporting agencies may retain obsolete adverse information 
and furnish it in reports for purposes that are exempt under subsection 
(b) (e.g., credit for a principal amount of $50,000 or more).

                        4. Use of Shorter Periods

    The section does not require consumer reporting agencies to report 
adverse information for the time periods set forth, but only prohibits 
them from reporting adverse items beyond those time periods.

                       5. Inapplicability to Users

    The section does not limit creditors or others from using adverse 
information that would be ``obsolete'' under its terms, because it 
applies only to reporting by consumer reporting agencies. Similarly, 
this section does not bar a creditor's reporting such adverse obsolete 
information concerning its transactions or experiences with a consumer, 
because the report would not constitute a consumer report.

    6. Indicating the Existence of Nonspecified, Obsolete Information

    A consumer reporting agency may not furnish a consumer report 
indicating the existence of obsolete adverse information, even if no 
specific item is reported. For example, a consumer reporting agency may 
not communicate the existence of a debt older than seven years by 
reporting that a credit grantor cannot locate a debtor whose debt was 
charged off ten years ago.

                           7. Operative Dates

    The times or dates set forth in this section, which relate to the 
occurrence of events involving adverse information, determine whether 
the item is obsolete. The date that the consumer reporting agency 
acquired the adverse information is irrelevant to how long that 
information may be reported.
    Section 605(a)(1)--``Cases under title 11 of the United States Code 
or under the Bankruptcy Act that, from the date of entry of

[[Page 507]]

the order for relief or the date of adjudication, as the case may be, 
antedate the report by more than 10 years.''

                    1. Relation to Other Subsections

    The reporting of suits and judgments is governed by subsection 
(a)(2), the reporting of accounts placed for collection or charged to 
profit and loss is governed by subsection (a)(4), and the reporting of 
other delinquent accounts is governed by subsection (a)(6). Any such 
item, even if discharged in bankruptcy, may be reported separately for 
the applicable seven year period, while the existence of the bankruptcy 
filing may be reported for ten years.

                          2. Wage Earner Plans

    Wage earner plans may be reported for ten years, because they are 
covered by Title 11 of the United States Code.

                           3. Date for Filing

    A voluntary bankruptcy petition may be reported for ten years from 
the date that it is filed, because the filing of the petition 
constitutes the entry of an ``order for relief'' under this subsection, 
just like a filing under the Bankruptcy Act (11 U.S.C. 301).
    Section 605(a)(2)--``Suits and judgments which, from date of entry, 
antedate the report by more than seven years or until the governing 
statute of limitations has expired, whichever is the longer period.''

                            1. Operative Date

    For a suit, the term date of entry means the date the suit was 
initiated. A protracted suit may be reported for more than seven years 
from the date it was entered, if the governing statute of limitations 
has not expired. For a judgment, the term ``date of entry'' means the 
date the judgment was rendered.

                            2. Paid Judgments

    Paid judgments cannot be reported for more than seven years after 
the judgment was entered, because payment of the judgment eliminates any 
``governing statute of limitations'' under this subsection that might 
otherwise lengthen the period.
    Section 605(a)(3)--``Paid tax liens which, from date of payment, 
antedate the report by more than seven years.''

                             1. Unpaid Liens

    If a tax lien (or other lien) remains unsatisfied, it may be 
reported as long as it remains filed against the consumer, without 
limitation, because this subsection addresses only paid tax liens.
    Section 605(a)(4)--``Accounts placed for collection or charged to 
profit and loss which antedate the report by more than seven years.''

                       1. Placement for Collection

    The term placed for collection means internal collection activity by 
the creditor, as well as placement with an outside collector, whichever 
occurs first. Sending of the initial past due notices does not 
constitute placement for collection. Placement for collection occurs 
when dunning notices or other collection efforts are initiated. The 
reporting period is not extended by assignment to another entity for 
further collection, or by a partial or full payment of the account. 
However, where a borrower brings his delinquent account to date and 
returns to his regular payment schedule, and later defaults again, a 
consumer reporting agency may disregard any collection activity with 
respect to the first delinquency and measure the reporting period from 
the date the account was placed for collection as a result of the 
borrower's ultimate default. A consumer's repayment agreement with a 
collection agency can be treated as a new account that has its own seven 
year period.

                      2. Charge to Profit and Loss

    The term charged to profit and loss means action taken by the 
creditor to write off the account, and the applicable time period is 
measured from that event. If an account that was charged off is later 
paid in part or paid in full by the consumer, the reporting period of 
seven years from the charge-off is not extended by this subsequent 
payment.

3. Reporting of a Delinquent Account That is Later Placed for Collection 
                      or Charged to Profit and Loss

    The fact that an account has been placed for collection or charged 
to profit and loss may be reported for seven years from the date that 
either of those events occurs, regardless of the date the account became 
delinquent. The fact of delinquency may also be reported for seven years 
from the date the account became delinquent.
    Section 605(a)(5)--``Records of arrest, indictment, or conviction of 
crime which, from date of disposition, release, or parole, antedate the 
report by more than seven years.''

                               1. Records

    The term records means any information a consumer reporting agency 
has in its files relating to arrest, indictment or conviction of a 
crime.

                      2. Computation of Time Period

    The seven year reporting period runs from the date of disposition, 
release or parole, as applicable. For example, if charges are dismissed 
at or before trial, or the consumer is acquitted, the date of such 
dismissal or acquittal is the date of disposition. If the consumer is 
convicted of a crime and sentenced

[[Page 508]]

to confinement, the date of release or placement on parole controls. 
(Confinement, whether continuing or resulting from revocation of parole, 
may be reported until seven years after the confinement is terminated.) 
The sentencing date controls for a convicted consumer whose sentence 
does not include confinement. The fact that information concerning the 
arrest, indictment, or conviction of crime is obtained by the reporting 
agency at a later date from a more recent source (such as a newspaper or 
interview) does not serve to extend this reporting period.
    Section 605(a)(6)--``Any other adverse item of information which 
antedates the report by more than seven years.''

                    1. Relation to Other Subsections

    This section applies to all adverse information that is not covered 
by section 605(a) (1)-(5). For example, a delinquent account that has 
neither been placed for collection, nor charged to profit and loss, may 
be reported for seven years from the date of the last regularly 
scheduled payment. (Accounts placed for collection or charged to profit 
and loss may be reported for the time periods stated in section 
605(a)(4).)

                            2. Non Tax Liens

    Liens (other than paid tax liens) may be reported as long as they 
remain filed against the consumer or the consumer's property, and remain 
effective (under any applicable statute of limitations). (See discussion 
under section 605(a)(3), [hairsp]supra.)

        Section 606--Disclosure of Investigative Consumer Reports

    ``(a) A person may not procure or cause to be prepared an 
investigative consumer report on any consumer unless--
    (1) it is clearly and accurately disclosed to the consumer that an 
investigative consumer report including information as to his character, 
general reputation, personal characteristics, and mode of living, 
whichever are applicable, may be made, and such disclosure (A) is made 
in a writing mailed, or otherwise delivered, to the consumer, not later 
than three days after the date on which the report was first requested, 
and (B) includes a statement informing the consumer of his right to 
request the additional disclosures provided for under subsection (b) of 
this section; or
    (2) the report is to be used for employment purposes for which the 
consumer has not specifically applied.
    (b) Any person who procures or causes to be prepared an 
investigative consumer report on any consumer shall, upon written 
request made by the consumer within a reasonable period of time after 
receipt by him of the disclosure required by subsection (a)(1), make a 
complete and accurate disclosure of the nature and scope of the 
investigation requested. This disclosure shall be made in a writing 
mailed, or otherwise delivered, to the consumer not later than five days 
after the date on which the request for such disclosure was received 
from the consumer or such report was first requested, whichever is the 
later.
    (c) No person may be held liable for any violation of subsection (a) 
or (b) of this section if he shows by a preponderance of the evidence 
that at the time of the violation he maintained reasonable procedures to 
assure compliance with subsection (a) or (b).''

                      1. Relation to Other Sections

    The term investigative consumer report is defined at section 603(e) 
to mean a consumer report, all or a portion of which contains 
information obtained through personal interviews (in person or by 
telephone) with persons other than the subject, which information 
relates to the subject's character, general reputation, personal 
characteristics or mode of living.

            2. Inapplicability to Consumer Reporting Agencies

    The section applies only to report users, not consumer reporting 
agencies. The FCRA does not require consumer reporting agencies to 
inform consumers that information will be gathered or that reports will 
be furnished concerning them.

         3. Inapplicability to Noninvestigative Consumer Reports

    The section does not apply to noninvestigative reports.

                              4. Exemptions

    An employer who orders investigative consumer reports on a current 
employee who has not applied for a job change need not notify the 
employee, because the term ``employment purposes'' is defined to include 
``promotion, reassignment or retention'' and subsection (b) provides 
that the disclosure requirements do not apply to ``employment purposes 
for which the consumer has not specifically applied.''

                     5. Form and Delivery of Notice

    The notice must be in writing and delivered to the consumer. The 
user may include the disclosure in an application for employment, 
insurance, or credit, if it is clear and conspicuous and not obscured by 
other language. A user may send the required notice via first class 
mail. The notice must be mailed or otherwise delivered to the consumer 
not later than three days after the report was first requested.

[[Page 509]]

               6. Content of Notice of Right to Disclosure

    The notice must clearly and accurately disclose that an 
``investigative consumer report'' including information as to the 
consumer's character, general reputation, personal characteristics and 
mode of living (whichever are applicable), may be made. The disclosure 
must also state that an investigative consumer report involves personal 
interviews with sources such as neighbors, friends, or associates. The 
notice may include any additional, accurate information about the 
report, such as the types of interviews that will be conducted. The 
notice must include a statement informing the consumer of the right to 
request complete and accurate disclosure of the nature and scope of the 
investigation.

                   7. Content of Disclosure of Report

    When the consumer requests disclosure of the ``nature and scope'' of 
the investigation, such disclosure must include a complete and accurate 
description of the types of questions asked, the number and types of 
persons interviewed, and the name and address of the investigating 
agency. The user need not disclose the names of sources of information, 
nor must it provide the consumer with a copy of the report. A report 
user that provides the consumer with a blank copy of the standardized 
form used to transmit the report from the agency to the user complies 
with the requirement that it disclose the ``nature'' of the 
investigation.

                   Section 607--Compliance Procedures

    ``(a) Every consumer reporting agency shall maintain reasonable 
procedures designed to avoid violations of section 605 and to limit the 
furnishing of consumer reports to the purposes listed under section 
60[hairsp]4. These procedures shall require that prospective users of 
the information identify themselves, certify the purposes for which the 
information is sought, and certify that the information will be used for 
no other purpose. Every consumer reporting agency shall make a 
reasonable effort to verify the identity of a new prospective user and 
the uses certified by such prospective user prior to furnishing such 
user a consumer report. No consumer reporting agency may furnish a 
consumer report to any person if it has reasonable grounds for believing 
that the consumer report will not be used for a purpose listed in 
Section 604.
    (b) Whenever a consumer reporting agency prepares a consumer report 
it shall follow reasonable procedures to assure maximum possible 
accuracy of the information concerning the individual about whom the 
report relates.''

          1. Procedures to Avoid Reporting Obsolete Information

    A. General. A consumer reporting agency should establish procedures 
with its sources of adverse information that will avoid the risk of 
reporting obsolete information. For example, the agency should either 
require a creditor to supply the date an account was placed for 
collection or charged off, or the agency should use a conservative date 
for such placement or charge off (such as the date of the last regularly 
scheduled payment), to be sure of complying with the statute.
    B. Retention of obsolete information for reporting in excepted 
circumstances. If a consumer reporting agency retains adverse 
information in its files that is ``obsolete'' under section 605(a) 
(e.g., information about a satisfied judgment that is more than seven 
years old), so that it may be reported for use in transactions described 
by section 605(b) (i.e., applications for credit or life insurance for 
$50,000 or more, or employment at an annual salary of $20,000 or more), 
it must have procedural safeguards to avoid reporting the information 
except in those situations. The procedure should require that such 
obsolete information be released only after an internal decision that 
its release will not violate section 605.

       2. Procedures to Avoid Reporting for Impermissible Purposes

    A. Verification. A consumer reporting agency should have a system to 
verify that it is dealing with a legitimate business having a 
``permissible purpose'' for the information reported. What constitutes 
adequate verification will vary with the circumstances. If the consumer 
reporting agency is not familiar with the user, appropriate procedures 
might require an on-site visit to the user's place of business, or a 
check of the user's references.
    B. Required certification by user. A consumer reporting agency 
should adopt procedures that require prospective report users to 
identify themselves, certify the purpose for which the information is 
sought, and certify that the information will be used for no other 
purpose. A consumer reporting agency should determine initially that 
users have permissible purposes and ascertain what those purposes are. 
It should obtain a specific, written certification that the recipient 
will obtain reports for those purposes and no others. The user's 
certification that the report will be used for no other purposes should 
expressly prohibit the user from sharing the report or providing it to 
anyone else, other than the subject of the report or to a joint user 
having the same purpose. A consumer reporting agency should refuse to 
provide reports to those refusing to provide such certification.

[[Page 510]]

    C. Blanket or individual certification. Once the consumer reporting 
agency obtains a certification from a user (e.g., a creditor) that 
typically has a permissible purpose for receiving a consumer report, 
stating that it will use those reports only for specified permissible 
purposes (e.g., for credit or employment purposes), a certification of 
purpose need not be furnished for each individual report obtained, 
provided there is no reason to believe the user may be violating its 
certification. However, in furnishing reports to users that typically 
could have both permissible and impermissible purposes for ordering 
consumer reports (e.g., attorneys and detective agencies), the consumer 
reporting agency must require the user to provide a separate 
certification each time it requests a consumer report.
    D. Procedures to avoid recipients' abuse of certification. When 
doubt arises concerning any user's compliance with its contractual 
certification, a consumer reporting agency must take steps to insure 
compliance, such as requiring a separate, advance certification for each 
report it furnishes that user, or auditing that user to verify that it 
is obtaining reports only for permissible purposes. A consumer reporting 
agency must cease furnishing consumer reports to users who repeatedly 
request consumer reports for impermissible purposes.
    E. Unauthorized access. A consumer reporting agency should take 
several other steps when doubt arises concerning whether a user is 
obtaining reports for a permissible purpose from a computerized system. 
If it appears that a third party, not a subscriber, has obtained 
unauthorized access to the system, the consumer reporting agency should 
take appropriate steps such as altering authorized users' means of 
access, such as codes and passwords, and making random checks to ensure 
that future reports are obtained only for permissible purposes. If a 
subscriber has inadvertently sought reports for impermissible purposes 
or its employee has obtained reports without a permissible purpose, it 
would be appropriate for the consumer reporting agency to alter the 
subscriber's means of access, and require an individual written 
certification of the permissible purpose for each report requested or 
randomly verify such purposes. A consumer reporting agency should refuse 
to furnish any further reports to a user that repeatedly violates 
certifications.
    F. Use of computerized systems. A consumer reporting agency may 
furnish consumer reports to users via terminals, provided the consumer 
reporting agency has taken the necessary steps to ensure that the users 
have a permissible purpose to receive the reports. (The agency would 
have to record the identity of consumer report recipients for each 
consumer, to be able to make any disclosures required under section 
609(a)(3) or section 611(d)).
    G. Activity reports. If a consumer reporting agency provides 
``activity reports'' on all customers who have open-end accounts with a 
credit grantor, it must make certain that the credit grantor always 
notifies the agency when accounts are closed and paid in full, to avoid 
furnishing reports on former customers or other customers for whom the 
credit grantor lacks a permissible purpose. (See also discussion in 
section 604(3)(A), item 1, supra.)

      3. Reasonable Procedures to Assure Maximum Possible Accuracy

    A. General. The section does not require error free consumer 
reports. If a consumer reporting agency accurately transcribes, stores 
and communicates consumer information received from a source that it 
reasonably believes to be reputable, and which is credible on its face, 
the agency does not violate this section simply by reporting an item of 
information that turns out to be inaccurate. However, when a consumer 
reporting agency learns or should reasonably be aware of errors in its 
reports that may indicate systematic problems (by virtue of information 
from consumers, report users, from periodic review of its reporting 
system, or otherwise) it must review its procedures for assuring 
accuracy. Examples of errors that would require such review are the 
issuance of a consumer report pertaining entirely to a consumer other 
than the one on whom a report was requested, and the issuance of a 
consumer report containing information on two or more consumers (e.g., 
information that was mixed in the file) in response to a request for a 
report on only one of those consumers.
    B. Required steps to improve accuracy. If the agency's review of its 
procedures reveals, or the agency should reasonably be aware of, steps 
it can take to improve the accuracy of its reports at a reasonable cost, 
it must take any such steps. It should correct inaccuracies that come to 
its attention. A consumer reporting agency must also adopt reasonable 
procedures to eliminate systematic errors that it knows about, or should 
reasonably be aware of, resulting from procedures followed by its 
sources of information. For example, if a particular credit grantor has 
often furnished a significant amount of erroneous consumer account 
information, the agency must require the creditor to revise its 
procedures to correct whatever problems cause the errors or stop 
reporting information from that creditor.
    C. Use of automatic data processing equipment. Consumer reporting 
agencies that use automatic data processing equipment (particularly for 
long distance transmission of information) should have reasonable 
procedures to assure that the data is accurately

[[Page 511]]

converted into a machine-readable format and not distorted by machine 
malfunction or transmission failure. Reasonable security procedures must 
be adopted to minimize the possibility that computerized consumer 
information will be stolen or altered by either authorized or 
unauthorized users of the information system.
    D. Reliability of sources. Whether a consumer reporting agency may 
rely on the accuracy of information from a source depends on the 
circumstances. This section does not hold a consumer reporting agency 
responsible where an item of information that it receives from a source 
that it reasonably believes to be reputable appears credible on its 
face, and is transcribed, stored and communicated as provided by that 
source. Requirements are more stringent where the information furnished 
appears implausible or inconsistent, or where procedures for furnishing 
it seem likely to result in inaccuracies, or where the consumer 
reporting agency has had numerous problems regarding information from a 
particular source.
    E. Undesignated information in credit transactions. Undesignated 
information means all credit history information in a married (or 
formerly married) consumer's file, which was not reported to the 
consumer reporting agency with a designation indicating that the 
information relates to either the consumer's joint or individual credit 
experience. The question arises what is meant by reasonable procedures 
under this section for treatment of credit history in the file of only 
one (present or former) spouse (usually the husband) that has not been 
designated by the procedure in Regulation B, 12 CFR 202.10, which 
implements the Equal Credit Opportunity Act. (This situation exists only 
for certain credit history file information compiled before June 1, 
1977, and certain accounts opened before that date.) A consumer 
reporting agency may report information solely in the file of spouse A, 
when spouse B applies for a separate extension of credit, only if such 
information relates to accounts for which spouse B was either a user or 
was contractually liable, or the report recipient has a permissible 
purpose for a report on spouse A. A consumer reporting agency may not 
supply all undesignated information from the file of a consumer's spouse 
in response to a request for a report on the consumer, because some or 
all of that information may not relate to both spouses. Consumer 
reporting agencies must honor without charge the request of a married or 
formerly married individual that undesignated information (that appears 
only in the files of the individual's present or former spouse) be 
segregated--i.e., placed in a separate file that is accessible under 
that individual's name. This procedure insures greater accuracy and 
protection of the privacy of spouses than does the automatic reporting 
of undesignated information.
    F. Reporting of credit obligation--(1) Past due accounts. A consumer 
reporting agency must employ reasonable procedures to keep its file 
current on past due accounts (e.g., by requiring its creditors to notify 
the credit bureau when a previously past due account has been paid or 
discharged in bankruptcy), but its failure to show such activity in 
particular instances, despite the maintenance of reasonable procedures 
to keep files current, does not violate this section. For example, a 
consumer reporting agency that reports accurately in 1985 that as of 
1983 the consumer owed a retail store money, without mentioning that the 
consumer eventually paid the debt, does not violate this section if it 
was not informed by the store or the consumer of the later payment.
    (2) Significant, verified information. A consumer reporting agency 
must report significant, verified information it possesses about an 
item. For instance, a consumer reporting agency may continue to report a 
paid account that was previously delinquent, but should also report that 
the account has been paid. Similarly, a consumer reporting agency may 
include delinquencies on debts discharged in bankruptcy in consumer 
reports, but must accurately note the status of the debt (e.g., 
discharged, voluntarily repaid). Finally, if a reported bankruptcy has 
been dismissed, that fact should be reported.
    (3) Guarantor obligations. Personal guarantees for obligations 
incurred by others (including a corporation) may be included in a 
consumer report on the individual who is the guarantor. The report 
should accurately reflect the individual's involvement (e.g., as 
guarantor of the corporate debt).

                     4. Effect of Criminal Sanctions

    Notwithstanding the fact that section 619 provides criminal 
sanctions against persons who knowingly and willfully obtain information 
on a consumer from a consumer reporting agency under false pretenses, a 
consumer reporting agency must follow reasonable procedures to limit the 
furnishing of reports to those with permissible purposes.

                     5. Disclosure of Credit Denial

    When reporting that a consumer was denied a benefit (such as 
credit), a consumer reporting agency need not report the reasons for the 
denial.

                          6. Content of Report

    A consumer report need not be tailored to the user's needs. It may 
contain any information that is complete, accurate, and not obsolete on 
the consumer who is the subject of the report. A consumer report may 
include an account that was discharged in bankruptcy (as well as the 
bankruptcy

[[Page 512]]

itself), as long as it reports a zero balance due to reflect the fact 
that the consumer is no longer liable for the discharged debt. A 
consumer report may include a list of recipients of reports on the 
consumer who is the subject of the report.

                       7. Completeness of Reports

    Consumer reporting agencies are not required to include all existing 
derogatory or favorable information about a consumer in their reports. 
(See, however, discussion in section 611, item 14, infra, concerning 
conveying consumer dispute statements.) However, a consumer reporting 
agency may not mislead its subscribers as to the completeness of its 
reports by deleting nonderogatory information and not disclosing its 
policy of making such deletions.

       8. User Notice of Adverse Action Based on a Consumer Report

    A consumer reporting agency need not require users of its consumer 
reports to provide any notice to consumers against whom adverse action 
is taken based on a consumer report. The FCRA imposes such notice 
requirements directly on users, under the circumstances set out in 
section 615.

            Section 608--Disclosures to Governmental Agencies

    ``Notwithstanding the provisions of section 604, a consumer 
reporting agency may furnish identifying information respecting any 
consumer limited to his name, address, former addresses, places of 
employment, or former places of employment, to a governmental agency.''

       1. Permissible Purpose Necessary for Additional Information

    A consumer reporting agency may furnish limited identifying 
information concerning a consumer to a governmental agency (e.g., an 
agency seeking a fugitive from justice) even if that agency does not 
have a ``permissible purpose'' under section 604 to receive a consumer 
report. However, a governmental agency must have a permissible purpose 
in order to obtain information beyond what is authorized by this 
section.

                     2. Entities Covered by Section

    The term governmental agency includes federal, state, county and 
municipal agencies, and grand juries. Only governmental agencies may 
obtain disclosures of identifying information under this section.

                  Section 609--Disclosures to Consumers

    ``(a) Every consumer reporting agency shall, upon request and proper 
identification of any consumer, clearly and accurately disclose to the 
consumer:
    (1) The nature and substance of all information (except medical 
information) in its files on the consumer at the time of the request.
    (2) The sources of the information; except that the sources of 
information acquired solely for use in preparing an investigative 
consumer report and actually used for no other purpose need not be 
disclosed: Provided, That in the event an action is brought under this 
title, such sources shall be available to the plaintiff under 
appropriate discovery procedures in the court in which the action is 
brought.
    (3) The recipients of any consumer report on the consumer which it 
has furnished
    (A) for employment purposes within the two-year period preceding the 
request, and
    (B) for any other purpose within the six-month period preceding the 
request.
    (b) The requirements of subsection (a) respecting the disclosure of 
sources of information and the recipients of consumer reports do not 
apply to information received or consumer reports furnished prior to the 
effective date of this title except to the extent that the matter 
involved is contained in the files of the consumer reporting agency on 
that date.''

                      1. Relation to Other Sections

    This section states what consumer reporting agencies must disclose 
to consumers, upon request and proper identification. Section 610 sets 
forth the conditions under which those disclosures must be made, and 
section 612 sets forth the circumstances under which consumer reporting 
agencies may charge for making such disclosures. The term ``file'' as 
used in section 609(a)(1) is defined in section 603(g). The term 
``investigative consumer report,'' which is used in section 609(a)(2), 
is defined in section 603(e). The term medical information, which is 
used in section 609(a)(1), is defined in section 603(i).

                        2. Proper Identification

    A consumer reporting agency must take reasonable steps to verify the 
identity of an individual seeking disclosure under this section.

                 3. Manner of ``Proper Identification''

    If a consumer provides sufficient identifying information, the 
consumer reporting agency cannot insist that the consumer execute a 
``request for interview'' form, or provide the items listed on it, as a 
prerequisite to disclosure. However, the agency may use a form to 
identify consumers requesting disclosure if it does not use the form to 
inhibit disclosure, or to obtain any waiver of the consumers' rights. A 
consumer reporting agency may provide disclosure by telephone without a 
written request, if the consumer is

[[Page 513]]

properly identified, but may insist on a written request before 
providing such disclosure.

                          4. Power of Attorney

    A consumer reporting agency may disclose a consumer's file to a 
third party authorized by the consumer's written power of attorney to 
obtain the disclosure, if the third party presents adequate 
identification and fulfills other applicable conditions of disclosure. 
However, the agency may also disclose the information directly to the 
consumer.

                    5. Nature of Disclosure Required

    A consumer reporting agency must disclose the nature and substance 
of all items in the consumer's file, no matter how or where they are 
stored (e.g., in other offices of the consumer reporting agency). The 
consumer reporting agency must have personnel trained to explain to the 
consumer any information furnished in accordance with the Act. 
Particularly when the file includes coded information that would be 
meaningless to the consumer, the agency's personnel must assist the 
consumer to understand the disclosures. Any summary must not 
mischaracterize the nature of any item of information in the file. The 
consumer reporting agency is not required to provide a copy of the file, 
or any other written disclosure, or to read the file verbatim to the 
consumer or to permit the consumer to examine any information in its 
files. A consumer reporting agency may choose to usually comply with the 
FCRA in writing, by providing a copy of the file to the consumer or 
otherwise.

                         6. Medical Information

    Medical information includes information obtained with the 
consumer's consent from physicians and medical facilities, but does not 
include comments on a consumer's health by non-medical personnel. A 
consumer reporting agency is not required to disclose medical 
information in its files to consumers, but may do so. Alternatively, a 
consumer reporting agency may inform consumers that there is medical 
information in the files concerning them and supply the name of the 
doctor or other source of the information. Consumer reporting agencies 
may also disclose such information to a physician of the consumer's 
choice, upon the consumer's written instructions pursuant to section 
604(2).

                        7. Ancillary Information.

    A consumer reporting agency is not required to disclose information 
consisting of an audit trail of changes it makes in the consumer's file, 
billing records, or the contents of a consumer relations folder, if the 
information is not from consumer reports and will not be used in 
preparing future consumer reports. Such data is not included in the term 
``information in the files'' which must be disclosed to the consumer 
pursuant to this section. A consumer reporting agency must disclose 
claims report information only if it has appeared in consumer reports.

                    8. Information on Other Consumers

    The consumer has no right to information in the consumer reporting 
agency's files on other individuals, because the disclosure must be 
limited to information ``on the consumer.'' However, all information in 
the files of the consumer making the request must be disclosed, 
including information about another individual that relates to the 
consumer (e.g., concerning that individual's dealings with the subject 
of the consumer report).

                 9. Disclosure of Sources of Information

    Consumer reporting agencies must disclose the sources of 
information, except for sources of information acquired solely for use 
in preparing an investigative consumer report and actually used for no 
other purpose. When it has used information from another consumer 
reporting agency, the other agency should be reported as a source.

            10. Disclosure of Recipients of Consumer Reports

    Consumer reporting agencies must maintain records of recipients of 
prior consumer reports sufficient to enable them to meet the FCRA's 
requirements that they disclose the identity of recipients of prior 
consumer reports. A consumer reporting agency that furnishes a consumer 
report directly to a report user at the request of another consumer 
reporting agency must disclose the identity of the user that was the 
ultimate recipient of the report, not the other agency that acted as an 
intermediary in procuring the report.

            11. Disclosure of Recipients of Prescreened Lists

    A consumer reporting agency must furnish to a consumer requesting 
file disclosure the identity of recipients of any prescreened lists that 
contained the consumer's name wh en submitted to creditors (or other 
users) by the consumer reporting agency.

                            12. Risk Scores.

    A consumer reporting agency is not required to disclose a risk score 
(or other numerical evaluation, however named) that is provided to the 
agency's client (based on an analysis of data on the consumer) but not 
retained by the agency. Such a score is not information ``in (the 
agency's) files at the time of the request'' by the consumer for file 
disclosure.

[[Page 514]]

                  Section 610--Conditions of Disclosure

    ``(a) A consumer reporting agency shall make the disclosures 
required under section 609 during normal business hours and on 
reasonable notice.
    (b) The disclosures required under section 609 shall be made to the 
consumer--
    (1) in person if he appears in person and furnishes proper 
identification; or
    (2) by telephone if he has made a written request, with proper 
identification, for telephone disclosure and the toll charge, if any, 
for the telephone call is prepaid by or charged directly to the 
consumer.
    (c) Any consumer reporting agency shall provide trained personnel to 
explain to the consumer any information furnished to him pursuant to 
section 609.
    (d) The consumer shall be permitted to be accompanied by one other 
person of his choosing, who shall furnish reasonable identification. A 
consumer reporting agency may require the consumer to furnish a written 
statement granting permission to the consumer reporting agency to 
discuss the consumer's file in such person's presence.
    (e) Except as provided in section 616 and 617, no consumer may bring 
any action or proceeding in the nature of defamation, invasion of 
privacy, or negligence with respect to the reporting of information 
against any consumer reporting agency, any user of information or any 
person who furnishes information to a consumer reporting agency, based 
on information disclosed pursuant to section 609, 610, or 615, except as 
to false information furnished with malice or willful intent to injure 
such consumers.''

                          1. Time of Disclosure

    A consumer reporting agency must make disclosures during normal 
business hours, upon reasonable notice. However, the consumer reporting 
agency may waive reasonable notice, and the consumer may agree to 
disclosure outside of normal business hours. A consumer reporting agency 
may make in-person disclosure to consumers who have made appointments 
ahead of other consumers, because the disclosures are only required to 
be made ``on reasonable notice.''

                     2. Extra Conditions Prohibited

    A consumer reporting agency may not add conditions not set out in 
the FCRA as a prerequisite to the required disclosure.

                         3. Manner of Disclosure

    A consumer reporting agency may, with the consumer's actual or 
implied consent, meet its disclosure obligations by mail, in lieu of the 
in-person or telephone disclosures specified in the statute.

             4. Disclosure in the Presence of Third Parties

    When the consumer requests disclosure in a third party's presence, 
the consumer reporting agency may require that a consumer sign an 
authorization before such disclosure is made. The consumer may choose 
the third party to accompany him or her for the disclosure.

                      5. Expense of Telephone Calls

    A consumer reporting agency is not required to pay the telephone 
charge for a telephone interview with a consumer obtaining disclosure.

                    6. Qualified Defamation Privilege

    The privilege extended by subsection 610(e) does not apply to an 
action brought by a consumer if the action is based on information not 
disclosed pursuant to sections 609, 610 or 615. A disclosure to a 
consumer's representative (e.g., based on the consumer's power of 
attorney) constitutes ``information disclosed pursuant to section 609'' 
and is thus covered by this privilege.

           Section 611--Procedure in Case of Disputed Accuracy

    ``(a) If the completeness or accuracy of any item of information 
contained in his file is disputed by a consumer, and such dispute is 
directly conveyed to the consumer reporting agency by the consumer, the 
consumer reporting agency shall within a reasonable period of time 
reinvestigate and record the current status of that information unless 
it has reasonable grounds to believe that the dispute by the consumer is 
frivolous or irrelevant. If after such reinvestigation such information 
is found to be inaccurate or can no longer be verified, the consumer 
reporting agency shall promptly delete such information. The presence of 
contradictory information in the consumer's file does not in and of 
itself constitute reasonable grounds for believing the dispute is 
frivolous or irrelevant.
    (b) If the reinvestigation does not resolve the dispute, the 
consumer may file a brief statement setting forth the nature of the 
dispute. The consumer reporting agency may limit such statements to not 
more than one hundred words if it provides the consumer with assistance 
in writing a clear summary of the dispute.
    (c) Whenever a statement of a dispute is filed, unless there is 
reasonable grounds to believe that it is frivolous or irrelevant, the 
consumer reporting agency shall, in any subsequent consumer report 
containing the information in question, clearly note that it is disputed 
by the consumer and provide either the consumer's statement or a clear 
and accurate codification or summary thereof.

[[Page 515]]

    (d) Following any deletion of information which is found to be 
inaccurate or whose accuracy can no longer be verified or any notation 
as to disputed information, the consumer reporting agency shall, at the 
request of the consumer, furnish notification that the item has been 
deleted or the statement, codification or summary pursuant to subsection 
(b) or (c) to any person specifically designated by the consumer who has 
within two years prior thereto received a consumer report for employment 
purposes, or within six months prior thereto received a consumer report 
for any other purpose, which contained the deleted or disputed 
information. The consumer reporting agency shall clearly and 
conspicuously disclose to the consumer his rights to make such a 
request. Such disclosure shall be made at or prior to the time the 
information is deleted or the consumer's statement regarding the 
disputed information is received.''

                      1. Relation to Other Sections

    This section sets forth procedures consumer reporting agencies must 
follow if a consumer conveys a dispute of the completeness or accuracy 
of any item of information in the consumer's file to the consumer 
reporting agency. Section 609 provides for disclosures by consumer 
reporting agencies to consumers, and section 610 sets forth conditions 
of disclosure. Section 612 permits a consumer reporting agency to impose 
charges for certain disclosures, including the furnishing of certain 
information to recipients of prior reports, as provided by section 
611(d).

                        2. Proper Reinvestigation

    A consumer reporting agency conducting a reinvestigation must make a 
good faith effort to determine the accuracy of the disputed item or 
items. At a minimum, it must check with the original sources or other 
reliable sources of the disputed information and inform them of the 
nature of the consumer's dispute. In reinvestigating and attempting to 
verify a disputed credit transaction, a consumer reporting agency may 
rely on the accuracy of a creditor's ledger sheets and need not require 
the creditor to produce documentation such as the actual signed sales 
slips. Depending on the nature of the dispute, reinvestigation and 
verification may require more than asking the original source of the 
disputed information the same question and receiving the same answer. If 
the original source is contacted for reinvestigation, the consumer 
reporting agency should at least explain to the source that the original 
statement has been disputed, state the consumer's position, and then ask 
whether the source would confirm the information, qualify it, or accept 
the consumer's explanation.

           3. Complaint of Insufficient File, or Lack of File

    The FCRA does not require a consumer reporting agency to add new 
items of information to its file. A consumer reporting agency is not 
required to create new files on consumers for whom it has no file, nor 
is it required to add new lines of information about new accounts not 
reflected in an existing file, because the section permits the consumer 
to dispute only the completeness or accuracy of particular items of 
information in the file. If a consumer reporting agency chooses to add 
lines of information at the consumer's request, it may charge a fee for 
doing so.

               4. Explanation of Extenuating Circumstances

    A consumer reporting agency has no duty to reinvestigate, or take 
any other action under this section, if a consumer merely provides a 
reason for a failure to pay a debt (e.g., sudden illness or layoff), and 
does not challenge the accuracy or completeness of the item of 
information in the file relating to a debt. Most creditors are aware 
that a variety of circumstances may render consumers unable to repay 
credit obligations. Although a consumer reporting agency is not required 
to accept a consumer dispute statement that does not challenge the 
accuracy or completeness of an item in the consumer's file, it may 
accept such a statement and may charge a fee for doing so.

                      5. Reinvestigation of a Debt

    A consumer reporting agency must reinvestigate if a consumer conveys 
to it a dispute concerning the validity or status of a debt, such as 
whether the debt was owed by the consumer, or whether the debt had 
subsequently been paid. For example, if a consumer alleges that a 
judgment reflected in the file as unpaid has been satisfied, or notifies 
a consumer reporting agency that a past due obligation reflected in the 
file as unpaid was subsequently paid, the consumer reporting agency must 
reinvestigate the matter. If a file reflects a debt discharged in 
bankruptcy without reflecting subsequent reaffirmation and payment of 
that debt, a consumer may require that the item be reinvestigated.

                           6. Status of a Debt

    The consumer reporting agency must, upon reinvestigation, ``record 
the current status'' of the disputed item. This requires inclusion of 
any information relating to a change in status of an ongoing matter 
(e.g., that a credit account had been closed, that a debt shown as past 
due had subsequently been paid or discharged in bankruptcy, or that a 
debt shown as discharged in bankruptcy was later reaffirmed and/or 
paid).

[[Page 516]]

  7. Dispute Conveyed to Party Other Than the Consumer Reporting Agency

    A consumer reporting agency is required to take action under this 
section only if the consumer directly communicates a dispute to it. It 
is not required to respond to a dispute of information that the consumer 
merely conveys to others (e.g., to a source of information). (But see, 
however, discussion in section 607, item 3A, of consumer reporting 
agencies' duties to correct errors that come to their attention.)

 8. Dispute Conveyed to the Consumer Reporting Agency by a Party Other 
                            Than the Consumer

    A consumer reporting agency need not reinvestigate a dispute about a 
consumer's file raised by any third party, because the obligation under 
the section arises only where an ``item of information in his file is 
disputed by the consumer.''

    9. Consumer Disclosures and Adverse Action Not Prerequisites to 
                          Reinvestigation Duty

    A consumer reporting agency's obligation to reinvestigate disputed 
items is not contingent upon the consumer's having been denied a benefit 
or having asserted any rights under the FCRA other than disputing items 
of information.

                      10. Reasonable Period of Time

    A consumer reporting agency is required to reinvestigate and record 
the current status of disputed information within a reasonable period of 
time after the consumer conveys the dispute to it. Although consumer 
reporting agencies are able to reinvestigate most disputes within 30 
days, a ``reasonable time'' for a particular reinvestigation may be 
shorter or longer depending on the circumstances of the dispute. For 
example, where the consumer provides documentary evidence (e.g., a 
certified copy of a court record to show that a judgment has been paid) 
when submitting the dispute, the creditor may require a shorter time to 
reinvestigate. On the other hand, where the dispute is more complicated 
than normal (e.g., the consumer alleges in good faith that a creditor 
has falsified its report of the consumer's account history because of a 
personal grudge), the ``reasonable time'' needed to conduct the 
reinvestigation may be longer.

                       11. Frivolous or Irrelevant

    The mere presence of contradictory information in the file does not 
provide the consumer reporting agency ``reasonable grounds to believe 
that the dispute by the consumer is frivolous or irrelevant.'' A 
consumer reporting agency must assume a consumer's dispute is bona fide, 
unless there is evidence to the contrary. Such evidence may constitute 
receipt of letters from consumers disputing all information in their 
files without providing any allegations concerning the specific items in 
the files, or of several letters in similar format that indicate that a 
particular third party (e.g., a ``credit repair'' operator) is 
counselling consumers to dispute all items in their files, regardless of 
whether the information is known to be accurate. The agency is not 
required to repeat a reinvestigation that it has previously conducted 
simply because the consumer reiterates a dispute about the same item of 
information, unless the consumer provides additional evidence that the 
item is inaccurate or incomplete, or alleges changed circumstances.

     12. Deletion of Accurate Information That has not Been Disputed

    The consumer reporting agency is not required to delete accurate 
information that could not be verified upon reinvestigation, if it has 
not been ``disputed by a consumer.'' For example, if a creditor deletes 
adverse information from its files with the result that information 
could not be reverified if disputed, it is still permissible for a 
consumer reporting agency to report it (subject to the obsolescence 
provisions of section 605) until it is disputed.

            13. Consumer Dispute Statements on Multiple Items

    A consumer who disputes multiple items of information in his file 
may submit a one hundred word statement as to each disputed item.

  14. Conveying Dispute Statements to Recipients of Subsequent Reports.

    A consumer reporting agency may not merely tell the recipient of a 
subsequent report containing disputed information that the consumer's 
statement is on file but will be provided only if requested, because 
subsection (c) requires the agency to provide either the statement or 
``a clear and accurate codification or summary thereof.''

              Section 612--Charges for Certain Disclosures

    ``A consumer reporting agency shall make all disclosures pursuant to 
section 609 and furnish all consumer reports pursuant to section 611(d) 
without charge to the consumer if, within thirty days after receipt by 
such consumer of a notification pursuant to section 615 or notification 
from a debt collection agency affiliated with such consumer reporting 
agency stating that the consumer's credit rating may be or has been 
adversely affected, the consumer makes a request under section 609 or 
611(d). Otherwise, the consumer reporting agency may impose a reasonable 
charge on the consumer for

[[Page 517]]

making disclosure to such consumer pursuant to section 609, the charge 
for which shall be indicated to the consumer prior to making disclosure; 
and for furnishing notifications, statements, summaries, or 
codifications to persons designated by the consumer pursuant to section 
611(d), the charge for which shall be indicated to the consumer prior to 
furnishing such information and shall not exceed the charge that the 
consumer reporting agency would impose on each designated recipient for 
a consumer report except that no charge may be made for notifying such 
persons of the deletion of information which is found to be inaccurate 
or which can no longer be verified.''

    1. Irrelevance of Subsequent Grant of Credit or Reason for Denial

    A consumer denied credit because of a consumer report from a 
consumer reporting agency has the right to a free disclosure from that 
agency within 30 days of receipt of the section 615(a) notice, even if 
credit was subsequently granted or the basis of the denial was that the 
references supplied by the consumer are too few or too new to appear in 
the credit file.

                2. Charge for Reinvestigation Prohibited

    This section does not permit consumer reporting agencies to charge 
for making the reinvestigation or following other procedures required by 
section 611 (a)-(c).

       3. Permissible Charges for Services Requested by Consumers

    A consumer reporting agency may charge fees for creating files on 
consumers at their request, or for other services not required by the 
FCRA that are requested by consumers.

     Section 613--Public Record Information for Employment Purposes

    ``A consumer reporting agency which furnishes a consumer report for 
employment purposes and which for that purpose compiles and reports 
items of information on consumers which are matters of public record and 
are likely to have an adverse effect upon a consumer's ability to obtain 
employment shall--
    (1) at the time such public record information is reported to the 
user of such consumer report, notify the consumer of the fact that 
public record information is being reported by the consumer reporting 
agency, together with the name and address of the person to whom such 
information is being reported; or
    (2) maintain strict procedures designed to insure that whenever 
public record information which is likely to have an adverse effect on a 
consumer's ability to obtain employment is reported it is complete and 
up to date. For purposes of this paragraph, items of public record 
relating to arrests, indictments, convictions, suits, tax liens, and 
outstanding judgments shall be considered up to date if the current 
public record status of the item at the time of the report is 
reported.''

                      1. Relation to Other Sections

    A consumer reporting agency that complies with section 613(1) must 
also follow reasonable procedures to assure maximum possible accuracy, 
as required by section 607(b).

                   2. Alternate Methods of Compliance

    A consumer reporting agency that furnishes public record information 
for employment purposes must comply with either subsection (1) or (2), 
but need not comply with both.

          3. Information From Another Consumer Reporting Agency

    If a consumer reporting agency uses information or reports from 
other consumer reporting agencies in a report for employment purposes, 
it must comply with this section.

                      4. Method of Providing Notice

    A consumer reporting agency may use first class mail to provide the 
notice required by subsection (1).

                                5. Waiver

    The procedures required by this section cannot be waived by the 
consumer to whom the report relates.

       Section 614--Restrictions on Investigative Consumer Reports

    ``Whenever a consumer reporting agency prepares an investigative 
consumer report, no adverse information in the consumer report (other 
than information which is a matter of public record) may be included in 
a subsequent consumer report unless such adverse information has been 
verified in the process of making such subsequent consumer report, or 
the adverse information was received within the three-month period 
preceding the date the subsequent report is furnished.''

         Section 615--Requirements on Users of Consumer Reports

    (a) Whenever credit or insurance for personal, family, or household 
purposes, or employment involving a consumer is denied or the charge for 
such credit or insurance is increased either wholly or partly because of 
information contained in a consumer report from a consumer reporting 
agency, the user of the consumer report shall so advise the consumer 
against whom such adverse action has been taken and supply the name and 
address of the consumer reporting agency making the report.

[[Page 518]]

    (b) Whenever credit for personal, family, or household purposes 
involving a consumer is denied or the charge for such credit is 
increased either wholly or partly because of information obtained from a 
person other than a consumer reporting agency bearing upon the 
consumer's credit worthiness, credit standing, credit capacity, 
character, general reputation, personal characteristics, or mode of 
living, the user of such information shall, within a reasonable period 
of time, upon the consumer's written request for the reasons for such 
adverse action received within 60 days after learning of such adverse 
action, disclose the nature of the information to the consumer. The user 
of such information shall clearly and accurately disclose to the 
consumer his right to make such written request at the time such adverse 
action is communicated to the consumer.
    (c) No person shall be held liable for any violation of this section 
if he shows by a preponderance of the evidence that at the time of the 
alleged violation he maintained reasonable procedures to assure 
compliance with the provisions of subsections (a) and (b).''

             1. Relation to Other Sections and Regulation B

    Sections 606 and 615 are the only two sections that require users of 
reports to make disclosures to consumers. Section 606 applies only to 
users of ``investigative consumer reports.'' Creditors should not 
confuse compliance with section 615(a), which only requires disclosure 
of the name and address of the consumer reporting agency, and compliance 
with the Equal Credit Opportunity Act, 15 U.S.C. 1691 et seq. and 
Regulation B, 12 C.F.R. 202, which require disclosure of the reasons for 
adverse action. Compliance with section 615(a), therefore, does not 
constitute compliance with Regulation B.

                    2. Limited Scope of Requirements

    The section does not require that creditors disclose their credit 
criteria or standards or that employees furnish copies of personnel 
files to former employees. The section does not require that the user 
provide any kind of advance notification to consumers before a consumer 
report is obtained. (See section 606 regarding notice of investigative 
consumer reports.)

                         3. Method of Disclosure

    The disclosures required by this section need not be made in 
writing. However, users will have evidence that they have taken 
reasonable steps to comply with this section if they provide written 
disclosures and retain copies for at least two years, the applicable 
statute of limitations for most civil liability actions under the FCRA.

              4. Adverse Action Based on Direct Information

    This section does not require that a user send any notice to a 
consumer concerning adverse action regarding that consumer that is based 
neither on information from a consumer reporting agency nor on 
information from a third party. For example, no disclosures are required 
concerning adverse action based on information provided by the consumer 
in an application or based on past experience in direct transactions 
with the consumer.

            5. Creditors Using ``Prescreened'' Mailing Lists

    A creditor is not required to provide notices regarding consumer 
reporting agencies that prepare mailing lists by ``prescreening'' 
because they do not involve consumer requests for credit and credit has 
not been denied to consumers whose names are deleted from a list 
furnished to the agency for use in this procedure. See discussion of 
``prescreening,'' under section 604(3)(A), item 6, supra.

           6. Applicability to Users of Motor Vehicle Reports

    An insurer that refuses to issue a policy, or charges a higher than 
normal premium, based on a motor vehicle report is required to comply 
with subsection(a).

                7. Securities and Insurance Transactions

    A consumer report user that denies credit to a consumer in 
connection with a securities transaction must provide the required 
notice, because the denial is of ``credit * * * for personal purposes,'' 
unless the consumer engages in such transactions as a business.

                     8. Denial o[hairsp]f Employment

    An employer must provide the notice required by subsection (a) to an 
individual who has applied for employment and has been rejected based on 
a consumer report. However, an employer is not required to send a notice 
when it decides not to offer a position to an individual who has not 
applied for it, because in this case employment is not ``denied.'' (See 
discussion in section 606, item 4, supra.)

                   9. Adverse Action Involving Credit

    A creditor must provide the required notice when it denies the 
consumer's request for credit (including a rejection based on a scoring 
system, where a credit report received less than the maximum number of 
points possible and caused the application to receive an insufficient 
score), denies the consumer's request for increased credit, grants 
credit in an amount less than the consumer requested, or raises the 
charge for credit.

[[Page 519]]

    10. Adverse Action Not Involving Credit, Insurance or Employment

    The Act does not require that a report user provide any notice to 
consumers when taking adverse action not relating to credit, insurance 
or employment. For example, a landlord who refuses to rent an apartment 
to a consumer based on credit or other information in a consumer report 
need not provide the notice. Similarly, a party that uses credit or 
other information in a consumer report as a basis for refusing to accept 
payment by check need not comply with this section. Checks have 
historically been treated as cash items, and thus such refusal does not 
involve a denial of credit, insurance or employment.

     11. Adverse Action Based on Non-derogatory Adverse Information

    A party taking adverse action concerning credit or insurance or 
denying employment, ``wholly or partly because of information contained 
in a consumer report,'' must provide the required notice, even if the 
information is not derogatory. For example, the user must give the 
notice if the denial is based wholly or partly on the absence of a file 
or on the fact that the file contained insufficient references.

          12. Name and Address of the Consumer Reporting Agency

    The ``section 615(a)'' notice must include the consumer reporting 
agency's street address, not just a post office box address.

                       13. Agency To Be Identified

    The consumer report user should provide the name and address of the 
consumer reporting agency from which it obtained the consumer report, 
even if that agency obtained all or part of the report from another 
agency.

              14. Denial Based Partly on a Consumer Report

    A ``section 615(a)'' notice must be sent even if the adverse action 
is based only partly on a consumer report.

    15. Denial of Credit Based on Information From ``Third Parties''

    Subsection (b) imposes requirements on a creditor when it denies (or 
increases the charge for) credit for personal, family or household 
purposes involving a consumer, based on information from a ``third 
party'' source, which means a source other than the consumer reporting 
agency, the creditor's own files, or the consumer's application (e.g., 
creditor, employer, landlord, or the public record). Where a creditor 
denies a consumer's application based on information obtained directly 
from another lender, even if the lender's name was furnished to the 
creditor by a consumer reporting agency, the creditor must give a 
``third party'' disclosure.

          16. Substance of Required ``Third Party'' Disclosures

    When the adverse action is communicated to the consumer, the 
creditor must clearly and accurately disclose to the consumer his or her 
right to make a written request for the disclosure of the nature of the 
third party information that led to the adverse action. Upon timely 
receipt of such a request, however, the creditor need disclose only the 
nature of the information that led to the adverse action (e.g., history 
of late rent payments or bad checks); it need not identify the source 
that provided the information or the criteria that led to the adverse 
action. A creditor may comply with subsection (b) by providing a 
statement of the nature of the third party information that led to the 
denial when it notifies the consumer of the denial. A statement of 
principal, specific reasons for adverse action based on third party 
information that is sufficient to comply with the requirements of the 
Equal Credit Opportunity Act (e.g., ``unable to verify employment'') is 
sufficient to constitute disclosure of the ``nature of the information'' 
under subsection (b).

         Section 616--Civil Liability for Willful Noncompliance

    Section 616 permits consumers who sue and prove willful 
noncompliance with the Act to recover actual damages, punitive damages, 
and the costs of the action, together with reasonable attorney's fees.

        Section 617--Civil Liability for Negligent Noncompliance

    Section 617 permits consumers who sue and prove negligent 
noncompliance with the Act to recover actual damages and the costs of 
the action, together with reasonable attorney's fees.

       Section 618--Jurisdiction of Courts; Limitation of Actions

    Section 618 provides that any action brought under section 616 or 
section 617 may be brought in any United States district court or other 
court of competent jurisdiction. Such suit must be brought within two 
years from the date on which liability arises, unless a defendant has 
materially and willfully misrepresented information the Act requires to 
be disclosed, and the information misrepresented is material to 
establishment of the defendant's liability. In that event, the action 
must be brought within two years after the individual discovers the 
misrepresentation.

[[Page 520]]

         Section 619--Obtaining Information Under False Pretense

    Section 619 provides criminal sanctions against any person who 
knowingly and willfully obtains information on a consumer from a 
consumer reporting agency under false pretenses.

                      1. Relation to Other Sections

    The presence of this provision does not excuse a consumer reporting 
agency's failure to follow reasonable procedures, as required by section 
607(a), to limit the furnishing of consumer reports to the purposes 
listed under section 604.

     Section 620--Unauthorized Disclosures by Officers or Employees

    Section 620 provides criminal sanctions against any officer or 
employee of a consumer reporting agency who knowingly and willfully 
provides information concerning an individual from the agency's file to 
a person not authorized to receive it.

                 Section 621--Administrative Enforcement

    This section gives the Federal Trade Commission authority to enforce 
the Act with respect to consumer reporting agencies, users of reports, 
and all others, except to the extent that it gives enforcement 
jurisdiction specifically to some other agency. Those excepted from the 
Commission's enforcement jurisdiction include certain financial 
institutions regulated by Federal agencies or boards, Federal credit 
unions, common carriers subject to acts to regulate commerce, air 
carriers, and parties subject to the Packers and Stockyards Act, 1921.

                               1. General

    The Commission can use its cease-and-desist power and other 
procedural, investigative and enforcement powers which it has under the 
FTC Act to secure compliance, irrespective of commerce or any other 
jurisdictional tests in the FTC Act.

                         2. Geographic Coverage

    The Commission's authority encompasses the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, and all United 
States territories but does not extend to activities outside those 
areas.

      3. Status of Commission Commentary and Staff Interpretations

    The FCRA does not give any Federal agency authority to promulgate 
rules having the force and effect, of statutory provisions. The 
Commission has issued this Commentary, superseding the eight formal 
Interpretations of the Act (16 CFR 600.1-600.8), previously issued 
pursuant to Sec.  1.73 of the Commission's Rules, 16 CFR 1.73. The 
Commentary does not constitute substantive rules and does not have the 
force or effect of statutory provisions. It constitutes guidelines to 
clarify the Act that are advisory in nature and represent the 
Commission's views as to what particular provisions of the Act mean. 
Staff opinion letters constitute staff interpretations of the Act's 
provisions, but do not have the force or effect of statutory provisions 
and, as provided in Sec.  1.72 of the Commission's Rules, 16 CFR 1.72, 
do not bind the Commission.

                   Section 622--Relation to State Laws

    ``This title does not annul, alter, affect, or exempt any person 
subject to the provisions of this title from complying with the laws of 
any State with respect to the collection, distribution, or use of any 
information on consumers, except to the extent that those laws are 
inconsistent with any provision of this title, and then only to the 
extent of the inconsistency.''

                              1. Basic Rule

    State law is pre-empted by the FCRA only when compliance with 
inconsistent State law would result in violation of the FCRA.

             2. Examples of Statutes that are not Pre-empted

    A State law requirement that an employer provide notice to a 
consumer before ordering a consumer report, or that a consumer reporting 
agency must provide the consumer with a written copy of his file, would 
not be pre-empted, because a party that complies with such provisions 
would not violate the FCRA.

               3. Examples of Statutes that are Pre-empted

    A State law authorizing grand juries to compel consumer reporting 
agencies to provide consumer reports, by means of subpoenas signed by a 
court clerk, is pre-empted by the FCRA's requirement that such reports 
be furnished only pursuant to an ``order of the court'' signed by a 
judge (section 604(1)), or furnished for other purposes not applicable 
to grand jury subpoenas (section 604 (2)-(3)), and by section 607(a). A 
State statute requiring automatic disclosure of a deletion or dispute 
statement to every person who has previously received a consumer report 
containing the disputed information, regardless of whether the consumer 
designates such persons to receive this disclosure, is pre-empted by 
section 604 of the FCRA, which permits disclosure only for specified, 
permissible purposes and by section 607(a), which requires consumer 
reporting agencies to limit the furnishing of consumer reports to 
purposes listed under section 604. Absent a specific designation by the 
consumer, the consumer reporting agency has no reason to believe all 
past recipients would have a

[[Page 521]]

present, permissible purpose to receive the reports.

          4. Statute Providing Access for Enforcement Purposes

    A State ``little FCRA'' that permits State officials access to a 
consumer reporting agency's files for the purpose of enforcing that 
statute just as Federal agencies are permitted access to such files 
under the FCRA, is not pre-empted by the FCRA.
    (Information collection requirements in this appendix were approved 
by the Office of Management and Budget under control number 3084-0091)

[55 FR 18808, May 4, 1990, as amended at 57 FR 4935, Feb. 11, 1992; 60 
FR 45660, Sept. 1, 1995]



PART 601_SUMMARY OF CONSUMER RIGHTS, NOTICE OF USER RESPONSIBILITIES, 

AND NOTICE OF FURNISHER RESPONSIBILITIES UNDER THE FAIR CREDIT 
REPORTING ACT--Table of Contents




Sec.
601.1 Authority and purpose.
601.2 Legal effect.

Appendix A to Part 601--Prescribed Summary of Consumer Rights
Appendix B to Part 601--Prescribed Notice of Furnisher Responsibilities
Appendix C to Part 601--Prescribed Notice of User Responsibilities

    Authority: 15 U.S.C. 1681g and 1681s.

    Source: 62 FR 35589, July 1, 1997, unless otherwise noted.



Sec.  601.1  Authority and purpose.

    (a) Authority. This part is issued by the Commission pursuant to the 
provisions of the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.), as 
most recently amended by the Consumer Credit Reporting Reform Act of 
1996 (Title II, Subtitle D, Chapter 1, of the Omnibus Consolidated 
Appropriations Act for Fiscal Year 1997), Public Law 104-208, 110 Stat. 
3009-426 (Sept. 30, 1996).
    (b) Purpose. The purpose of this part is to comply with sections 
607(c) and 609(c) of the Fair Credit Reporting Act, as amended. Section 
609(c)(3) directs the FTC to prescribe the form and content of a summary 
of consumers' legal rights under the FCRA that the amended law requires 
each consumer reporting agency to provide when disclosing the 
information in its file to consumers, and section 609(c)(4) provides 
that the summary need not be provided until the FTC has in fact 
prescribed its form and content. Section 607(d)(2) directs the FTC to 
prescribe the content of notices that consumer reporting agencies are 
required to provide to parties that supply information to, or purchase 
consumer reports from, the agency. These notices will set forth the 
responsibilities under the FCRA of all persons who furnish information 
to consumer reporting agencies or use information subject to the FCRA.



Sec.  601.2  Legal effect.

    The forms prescribed by the FTC do not constitute a trade regulation 
rule. They carry out the directive in the statute that the FTC prescribe 
the summary and notices. A consumer reporting agency that provides 
notices substantially similar to those prescribed by the FTC will be in 
compliance with Section 607(d) or 609(c) of the FCRA, as applicable.

      Appendix A to Part 601--Prescribed Summary of Consumer Rights

    The prescribed form for this summary is as a separate document, on 
paper no smaller than 8\1/2\ x 11 inches in size, with text no less than 
12-point type (8-point for the chart of federal agencies), in bold or 
capital letters as indicated. The form in this appendix prescribes both 
the content and the sequence of items in the required summary. A summary 
may accurately reflect changes in numerical items that change over time 
(e.g., dollar amounts, or phone numbers and addresses of federal 
agencies), and remain in compliance.

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 Appendix B to Part 601--Prescribed Notice of Furnisher Responsibilities
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   Appendix C to Part 601--Prescribed Notice of User Responsibilities
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PART 602_FAIR CREDIT REPORTING--Table of Contents




    Authority: 15 U.S.C. 1681s; Sec. 3, Pub. L. 108-159, 117 Stat. 1953.



                      Subpart A_General Provisions



Sec.  602.1  Purpose, scope, and effective dates.

    (a)--(b) [Reserved]
    (c) Effective dates. The applicable provisions of the Fair and 
Accurate Credit Transactions Act of 2003 (FACT Act), Pub. L. 108-159, 
117 Stat. 1952, shall be effective in accordance with the following 
schedule:
    (1) Provisions effective December 31, 2003.
    (i) Sections 151(a)(2), 212(e), 214(c), 311(b), and 711, concerning 
the relation to state laws; and
    (ii) Each of the provisions of the FACT Act that authorizes an 
agency to issue a regulation or to take other action to implement the 
applicable provision of the FACT Act or the applicable provision of the 
Fair Credit Reporting Act, as amended by the FACT Act, but only with 
respect to that agency's authority to propose and adopt the implementing 
regulation or to take such other action.
    (2) [Reserved]

[68 FR 74469, Dec. 24, 2003]

[[Page 532]]



 SUBCHAPTER G_RULES, REGULATIONS, STATEMENTS AND INTERPRETATIONS UNDER 
                     THE MAGNUSON-MOSS WARRANTY ACT





PART 700_INTERPRETATIONS OF MAGNUSON-MOSS WARRANTY ACT--Table of Contents




Sec.
700.1 Products covered.
700.2 Date of manufacture.
700.3 Written warranty.
700.4 Parties ``actually making'' a written warranty.
700.5 Expressions of general policy.
700.6 Designation of warranties.
700.7 Use of warranty registration cards.
700.8 Warrantor's decision as final.
700.9 Duty to install under a full warranty.
700.10 Section 102(c).
700.11 Written warranty, service contract, and insurance distinguished 
          for purposes of compliance under the Act.
700.12 Effective date of 16 CFR parts 701 and 702.

    Authority: Magnuson-Moss Warranty Act, Pub. L. 93-637, 15 U.S.C. 
2301.

    Source: 42 FR 36114, July 13, 1977, unless otherwise noted.



Sec.  700.1  Products covered.

    (a) The Act applies to written warranties on tangible personal 
property which is normally used for personal, family, or household 
purposes. This definition includes property which is intended to be 
attached to or installed in any real property without regard to whether 
it is so attached or installed. This means that a product is a 
``consumer product'' if the use of that type of product is not uncommon. 
The percentage of sales or the use to which a product is put by any 
individual buyer is not determinative. For example, products such as 
automobiles and typewriters which are used for both personal and 
commercial purposes come within the definition of consumer product. 
Where it is unclear whether a particular product is covered under the 
definition of consumer product, any ambiguity will be resolved in favor 
of coverage.
    (b) Agricultural products such as farm machinery, structures and 
implements used in the business or occupation of farming are not covered 
by the Act where their personal, family, or household use is uncommon. 
However, those agricultural products normally used for personal or 
household gardening (for example, to produce goods for personal 
consumption, and not for resale) are consumer products under the Act.
    (c) The definition of ``Consumer product'' limits the applicability 
of the Act to personal property, ``including any such property intended 
to be attached to or installed in any real property without regard to 
whether it is so attached or installed.'' This provision brings under 
the Act separate items of equipment attached to real property, such as 
air conditioners, furnaces, and water heaters.
    (d) The coverage of separate items of equipment attached to real 
property includes, but is not limited to, appliances and other thermal, 
mechanical, and electrical equipment. (It does not extend to the wiring, 
plumbing, ducts, and other items which are integral component parts of 
the structure.) State law would classify many such products as fixtures 
to, and therefore a part of, realty. The statutory definition is 
designed to bring such products under the Act regardless of whether they 
may be considered fixtures under state law.
    (e) The coverage of building materials which are not separate items 
of equipment is based on the nature of the purchase transaction. An 
analysis of the transaction will determine whether the goods are real or 
personal property. The numerous products which go into the construction 
of a consumer dwelling are all consumer products when sold ``over the 
counter,'' as by hardware and building supply retailers. This is also 
true where a consumer contracts for the purchase of such materials in 
connection with the improvement, repair, or modification of a home (for 
example, paneling, dropped ceilings, siding, roofing, storm windows, 
remodeling). However, where such

[[Page 533]]

products are at the time of sale integrated into the structure of a 
dwelling they are not consumer products as they cannot be practically 
distinguished from realty. Thus, for example, the beams, wallboard, 
wiring, plumbing, windows, roofing, and other structural components of a 
dwelling are not consumer products when they are sold as part of real 
estate covered by a written warranty.
    (f) In the case where a consumer contracts with a builder to 
construct a home, a substantial addition to a home, or other realty 
(such as a garage or an in-ground swimming pool) the building materials 
to be used are not consumer products. Although the materials are 
separately identifiable at the time the contract is made, it is the 
intention of the parties to contract for the construction of realty 
which will integrate the component materials. Of course, as noted above, 
any separate items of equipment to be attached to such realty are 
consumer products under the Act.
    (g) Certain provisions of the Act apply only to products actually 
costing the consumer more than a specified amount. Section 103 applies 
to consumer products actually costing the consumer more than $10, 
excluding tax. The $10 minimum will be interpreted to include multiple-
packaged items which may individually sell for less than $10, but which 
have been packaged in a manner that does not permit breaking the package 
to purchase an item or items at a price less than $10. Thus, a written 
warranty on a dozen items packaged and priced for sale at $12 must be 
designated, even though identical items may be offered in smaller 
quantities at under $10. This interpretation applies in the same manner 
to the minimum dollar limits in section 102 and rules promulgated under 
that section.
    (h) Warranties on replacement parts and components used to repair 
consumer products are covered; warranties on services are not covered. 
Therefore, warranties which apply solely to a repairer's workmanship in 
performing repairs are not subject to the Act. Where a written agreement 
warrants both the parts provided to effect a repair and the workmanship 
in making that repair, the warranty must comply with the Act and the 
rules thereunder.
    (i) The Act covers written warranties on consumer products 
``distributed in commerce'' as that term is defined in section 101(3). 
Thus, by its terms the Act arguably applies to products exported to 
foreign jurisdictions. However, the public interest would not be served 
by the use of Commission resources to enforce the Act with respect to 
such products. Moreover, the legislative intent to apply the 
requirements of the Act to such products is not sufficiently clear to 
justify such an extraordinary result. The Commission does not 
contemplate the enforcement of the Act with respect to consumer products 
exported to foreign jurisdictions. Products exported for sale at 
military post exchanges remain subject to the same enforcement standards 
as products sold within the United States, its territories and 
possessions.



Sec.  700.2  Date of manufacture.

    Section 112 of the Act provides that the Act shall apply only to 
those consumer products manufactured after July 4, 1975. When a consumer 
purchases repair of a consumer product the date of manufacture of any 
replacement parts used is the measuring date for determining coverage 
under the Act. The date of manufacture of the consumer product being 
repaired is in this instance not relevant. Where a consumer purchases or 
obtains on an exchange basis a rebuilt consumer product, the date that 
the rebuilding process is completed determines the Act's applicability.

[42 FR 36114, July 13, 1977; 42 FR 38341, July 28, 1977]



Sec.  700.3  Written warranty.

    (a) The Act imposes specific duties and liabilities on suppliers who 
offer written warranties on consumer products. Certain representations, 
such as energy efficiency ratings for electrical appliances, care 
labeling of wearing apparel, and other product information disclosures 
may be express warranties under the Uniform Commercial Code. However, 
these disclosures alone are not written warranties under this Act. 
Section 101(6) provides that a written

[[Page 534]]

affirmation of fact or a written promise of a specified level of 
performance must relate to a specified period of time in order to be 
considered a ``written warranty.'', \1\ A product information disclosure 
without a specified time period to which the disclosure relates is 
therefore not a written warranty. In addition, section 111(d) exempts 
from the Act (except section 102(c)) any written warranty the making or 
content of which is required by federal law. The Commission encourages 
the disclosure of product information which is not deceptive and which 
may benefit consumers, and will not construe the Act to impede 
information disclosure in product advertising or labeling.
---------------------------------------------------------------------------

    \1\ A ``written warranty'' is also created by a written affirmation 
of fact or a written promise that the product is defect free, or by a 
written undertaking of remedial action within the meaning of section 
101(6)(B).
---------------------------------------------------------------------------

    (b) Certain terms, or conditions, of sale of a consumer product may 
not be ``written warranties'' as that term is defined in section 101(6), 
and should not be offered or described in a manner that may deceive 
consumers as to their enforceability under the Act. For example, a 
seller of consumer products may give consumers an unconditional right to 
revoke acceptance of goods within a certain number of days after 
delivery without regard to defects or failure to meet a specified level 
of performance. Or a seller may permit consumers to return products for 
any reason for credit toward purchase of another item. Such terms of 
sale taken alone are not written warranties under the Act. Therefore, 
suppliers should avoid any characterization of such terms of sale as 
warranties. The use of such terms as ``free trial period'' and ``trade-
in credit policy'' in this regard would be appropriate. Furthermore, 
such terms of sale should be stated separately from any written 
warranty. Of course, the offering and performance of such terms of sale 
remain subject to section 5 of the Federal Trade Commission Act, 15 
U.S.C. 45.
    (c) The Magnuson-Moss Warranty Act generally applies to written 
warranties covering consumer products. Many consumer products are 
covered by warranties which are neither intended for, nor enforceable 
by, consumers. A common example is a warranty given by a component 
supplier to a manufacturer of consumer products. (The manufacturer may, 
in turn, warrant these components to consumers.) The component 
supplier's warranty is generally given solely to the product 
manufacturer, and is neither intended to be conveyed to the consumer nor 
brought to the consumer's attention in connection with the sale. Such 
warranties are not subject to the Act, since a written warranty under 
section 101(6) of the Act must become ``part of the basis of the bargain 
between a supplier and a buyer for purposes other than resale.'' 
However, the Act applies to a component supplier's warranty in writing 
which is given to the consumer. An example is a supplier's written 
warranty to the consumer covering a refrigerator that is sold installed 
in a boat or recreational vehicle. The supplier of the refrigerator 
relies on the boat or vehicle assembler to convey the written agreement 
to the consumer. In this case, the supplier's written warranty is to a 
consumer, and is covered by the Act.



Sec.  700.4  Parties ``actually making'' a written warranty.

    Section 110(f) of the Act provides that only the supplier ``actually 
making'' a written warranty is liable for purposes of FTC and private 
enforcement of the Act. A supplier who does no more than distribute or 
sell a consumer product covered by a written warranty offered by another 
person or business and which identifies that person or business as the 
warrantor is not liable for failure of the written warranty to comply 
with the Act or rules thereunder. However, other actions and written and 
oral representations of such a supplier in connection with the offer or 
sale of a warranted product may obligate that supplier under the Act. If 
under State law the supplier is deemed to have ``adopted'' the written 
affirmation of fact, promise, or undertaking, the supplier is also 
obligated under the Act. Suppliers are advised to consult State law to 
determine those actions and representations which may

[[Page 535]]

make them co-warrantors, and therefore obligated under the warranty of 
the other person or business.



Sec.  700.5  Expressions of general policy.

    (a) Under section 103(b), statements or representations of general 
policy concerning customer satisfaction which are not subject to any 
specific limitation need not be designated as full or limited 
warranties, and are exempt from the requirements of sections 102, 103, 
and 104 of the Act and rules thereunder. However, such statements remain 
subject to the enforcement provisions of section 110 of the Act, and to 
section 5 of the Federal Trade Commission Act, 15 U.S.C. 45.
    (b) The section 103(b) exemption applies only to general policies, 
not to those which are limited to specific consumer products 
manufactured or sold by the supplier offering such a policy. In 
addition, to qualify for an exemption under section 103(b) such policies 
may not be subject to any specific limitations. For example, policies 
which have an express limitation of duration or a limitation of the 
amount to be refunded are not exempted. This does not preclude the 
imposition of reasonable limitations based on the circumstances in each 
instance a consumer seeks to invoke such an agreement. For instance, a 
warrantor may refuse to honor such an expression of policy where a 
consumer has used a product for 10 years without previously expressing 
any dissatisfaction with the product. Such a refusal would not be a 
specific limitation under this provision.



Sec.  700.6  Designation of warranties.

    (a) Section 103 of the Act provides that written warranties on 
consumer products manufactured after July 4, 1975, and actually costing 
the consumer more than $10, excluding tax, must be designated either 
``Full (statement of duration) Warranty'' or ``Limited Warranty''. 
Warrantors may include a statement of duration in a limited warranty 
designation. The designation or designations should appear clearly and 
conspicuously as a caption, or prominent title, clearly separated from 
the text of the warranty. The full (statement of duration) warranty and 
limited warranty are the exclusive designations permitted under the Act, 
unless a specific exception is created by rule.
    (b) Section 104(b)(4) states that ``the duties under subsection (a) 
(of section 104) extend from the warrantor to each person who is a 
consumer with respect to the consumer product.'' Section 101(3) defines 
a consumer as ``a buyer (other than for purposes of resale) of any 
consumer product, any person to whom such product is transferred during 
the duration of an implied or written warranty (or service contract) 
applicable to the product. * * *.'' Therefore, a full warranty may not 
expressly restrict the warranty rights of a transferee during its stated 
duration. However, where the duration of a full warranty is defined 
solely in terms of first purchaser ownership there can be no violation 
of section 104(b)(4), since the duration of the warranty expires, by 
definition, at the time of transfer. No rights of a subsequent 
transferee are cut off as there is no transfer of ownership ``during the 
duration of (any) warranty.'' Thus, these provisions do not preclude the 
offering of a full warranty with its duration determined exclusively by 
the period during which the first purchaser owns the product, or uses it 
in conjunction with another product. For example, an automotive battery 
or muffler warranty may be designated as ``full warranty for as long as 
you own your car.'' Because this type of warranty leads the consumer to 
believe that proof of purchase is not needed so long as he or she owns 
the product a duty to furnish documentary proof may not be reasonably 
imposed on the consumer under this type of warranty. The burden is on 
the warrantor to prove that a particular claimant under this type of 
warranty is not the original purchaser or owner of the product. 
Warrantors or their designated agents may, however, ask consumers to 
state or affirm that they are the first purchaser of the product.



Sec.  700.7  Use of warranty registration cards.

    (a) Under section 104(b)(1) of the Act a warrantor offering a full 
warranty may not impose on consumers any duty other than notification of 
a defect as a condition of securing remedy of

[[Page 536]]

the defect or malfunction, unless such additional duty can be 
demonstrated by the warrantor to be reasonable. Warrantors have in the 
past stipulated the return of a ``warranty registration'' or similar 
card. By ``warranty registration card'' the Commission means a card 
which must be returned by the consumer shortly after purchase of the 
product and which is stipulated or implied in the warranty to be a 
condition precedent to warranty coverage and performance.
    (b) A requirement that the consumer return a warranty registration 
card or a similar notice as a condition of performance under a full 
warranty is an unreasonable duty. Thus, a provision such as, ``This 
warranty is void unless the warranty registration card is returned to 
the warrantor'' is not permissible in a full warranty, nor is it 
permissible to imply such a condition in a full warranty.
    (c) This does not prohibit the use of such registration cards where 
a warrantor suggests use of the card as one possible means of proof of 
the date the product was purchased. For example, it is permissible to 
provide in a full warranty that a consumer may fill out and return a 
card to place on file proof of the date the product was purchased. Any 
such suggestion to the consumer must include notice that failure to 
return the card will not affect rights under the warranty, so long as 
the consumer can show in a reasonable manner the date the product was 
purchased. Nor does this interpretation prohibit a seller from obtaining 
from purchasers at the time of sale information requested by the 
warrantor.



Sec.  700.8  Warrantor's decision as final.

    A warrantor shall not indicate in any written warranty or service 
contract either directly or indirectly that the decision of the 
warrantor, service contractor, or any designated third party is final or 
binding in any dispute concerning the warranty or service contract. Nor 
shall a warrantor or service contractor state that it alone shall 
determine what is a defect under the agreement. Such statements are 
deceptive since section 110(d) of the Act gives state and federal courts 
jurisdiction over suits for breach of warranty and service contract.



Sec.  700.9  Duty to install under a full warranty.

    Under section 104(a)(1) of the Act, the remedy under a full warranty 
must be provided to the consumer without charge. If the warranted 
product has utility only when installed, a full warranty must provide 
such installation without charge regardless of whether or not the 
consumer originally paid for installation by the warrantor or his agent. 
However, this does not preclude the warrantor from imposing on the 
consumer a duty to remove, return, or reinstall where such duty can be 
demonstrated by the warrantor to meet the standard of reasonableness 
under section 104(b)(1).



Sec.  700.10  Section 102(c).

    (a) Section 102(c) prohibits tying arrangements that condition 
coverage under a written warranty on the consumer's use of an article or 
service identified by brand, trade, or corporate name unless that 
article or service is provided without charge to the consumer.
    (b) Under a limited warranty that provides only for replacement of 
defective parts and no portion of labor charges, section 102(c) 
prohibits a condition that the consumer use only service (labor) 
identified by the warrantor to install the replacement parts. A 
warrantor or his designated representative may not provide parts under 
the warranty in a manner which impedes or precludes the choice by the 
consumer of the person or business to perform necessary labor to install 
such parts.
    (c) No warrantor may condition the continued validity of a warranty 
on the use of only authorized repair service and/or authorized 
replacement parts for non-warranty service and maintenance. For example, 
provisions such as, ``This warranty is void if service is performed by 
anyone other than an authorized `ABC' dealer and all replacement parts 
must be genuine `ABC' parts,'' and the like, are prohibited where the 
service or parts are not covered by the warranty. These provisions 
violate the Act in two ways. First, they

[[Page 537]]

violate the section 102 (c) ban against tying arrangements. Second, such 
provisions are deceptive under section 110 of the Act, because a 
warrantor cannot, as a matter of law, avoid liability under a written 
warranty where a defect is unrelated to the use by a consumer of 
``unauthorized'' articles or service. This does not preclude a warrantor 
from expressly excluding liability for defects or damage caused by such 
``unauthorized'' articles or service; nor does it preclude the warrantor 
from denying liability where the warrantor can demonstrate that the 
defect or damage was so caused.



Sec.  700.11  Written warranty, service contract, and insurance 
distinguished for purposes of compliance under the Act.

    (a) The Act recognizes two types of agreements which may provide 
similar coverage of consumer products, the written warranty, and the 
service contract. In addition, other agreements may meet the statutory 
definitions of either ``written warranty'' or ``service contract,'' but 
are sold and regulated under state law as contracts of insurance. One 
example is the automobile breakdown insurance policies sold in many 
jurisdictions and regulated by the state as a form of casualty 
insurance. The McCarran-Ferguson Act, 15 U.S.C. 1011 et seq., precludes 
jurisdiction under federal law over ``the business of insurance'' to the 
extent an agreement is regulated by state law as insurance. Thus, such 
agreements are subject to the Magnuson-Moss Warranty Act only to the 
extent they are not regulated in a particular state as the business of 
insurance.
    (b) ``Written warranty'' and ``service contract'' are defined in 
sections 101(6) and 101(8) of the Act, respectively. A written warranty 
must be ``part of the basis of the bargain.'' This means that it must be 
conveyed at the time of sale of the consumer product and the consumer 
must not give any consideration beyond the purchase price of the 
consumer product in order to benefit from the agreement. It is not a 
requirement of the Act that an agreement obligate a supplier of the 
consumer product to a written warranty, but merely that it be part of 
the basis of the bargain between a supplier and a consumer. This 
contemplates written warranties by third-party non-suppliers.
    (c) A service contract under the Act must meet the definitions of 
section 101(8). An agreement which would meet the definition of written 
warranty in section 101(6) (A) or (B) but for its failure to satisfy the 
basis of the bargain test is a service contract. For example, an 
agreement which calls for some consideration in addition to the purchase 
price of the consumer product, or which is entered into at some date 
after the purchase of the consumer product to which it applies, is a 
service contract. An agreement which relates only to the performance of 
maintenance and/or inspection services and which is not an undertaking, 
promise, or affirmation with respect to a specified level of 
performance, or that the product is free of defects in materials or 
workmanship, is a service contract. An agreement to perform periodic 
cleaning and inspection of a product over a specified period of time, 
even when offered at the time of sale and without charge to the 
consumer, is an example of such a service contract.



Sec.  700.12  Effective date of 16 CFR parts 701 and 702.

    The Statement of Basis and Purpose of the final rules promulgated on 
December 31, 1975, provides that parts 701 and 702 of this chapter will 
become effective one year after the date of promulgation, December 31, 
1976. The Commission intends this to mean that these rules apply only to 
written warranties on products manufactured after December 31, 1976.



PART 701_DISCLOSURE OF WRITTEN CONSUMER PRODUCT WARRANTY TERMS AND 
CONDITIONS--Table of Contents




Sec.
701.1 Definitions.
701.2 Scope.
701.3 Written warranty terms.
701.4 Owner registration cards.

    Authority: 15 U.S.C. 2302 and 2309.

    Source: 40 FR 60188, Dec. 31, 1975, unless otherwise noted.

[[Page 538]]



Sec.  701.1  Definitions.

    (a) The Act means the Magnuson-Moss Warranty Federal Trade 
Commission Improvement Act, 15 U.S.C. 2301, et seq.
    (b) Consumer product means any tangible personal property which is 
distributed in commerce and which is normally used for personal, family, 
or household purposes (including any such property intended to be 
attached to or installed in any real property without regard to whether 
it is so attached or installed. Products which are purchased solely for 
commercial or industrial use are excluded solely for purposes of this 
part.
    (c) Written warranty means:
    (1) Any written affirmation of fact or written promise made in 
connection with the sale of a consumer product by a supplier to a buyer 
which relates to the nature of the material or workmanship and affirms 
or promises that such material or workmanship is defect free or will 
meet a specified level of performance over a specified period of time, 
or
    (2) Any undertaking in writing in connection with the sale by a 
supplier of a consumer product to refund, repair, replace, or take other 
remedial action with respect to such product in the event that such 
product fails to meet the specifications set forth in the undertaking, 
which written affirmation, promise or undertaking becomes part of the 
basis of the bargain between a supplier and a buyer for purposes other 
than resale of such product.
    (d) Implied warranty means an implied warranty arising under State 
law (as modified by sections 104(a) and 108 of the Act) in connection 
with the sale by a supplier of a consumer product.
    (e) Remedy means whichever of the following actions the warrantor 
elects:
    (1) Repair,
    (2) Replacement, or
    (3) Refund; except that the warrantor may not elect refund unless:
    (i) The warrantor is unable to provide replacement and repair is not 
commercially practicable or cannot be timely made, or
    (ii) The consumer is willing to accept such refund.
    (f) Supplier means any person engaged in the business of making a 
consumer product directly or indirectly available to consumers.
    (g) Warrantor means any supplier or other person who gives or offers 
to give a written warranty.
    (h) Consumer means a buyer (other than for purposes of resale or use 
in the ordinary course of the buyer's business) of any consumer product, 
any person to whom such product is transferred during the duration of an 
implied or written warranty applicable to the product, and any other 
such person who is entitled by the terms of such warranty or under 
applicable State law to enforce against the warrantor the obligations of 
the warranty.
    (i) On the face of the warranty means:
    (1) Where the warranty is a single sheet with printing on both sides 
of the sheet or where the warranty is comprised of more than one sheet, 
the page on which the warranty text begins;
    (2) Where the warranty is included as part of a larger document, 
such as a use and care manual, the page in such document on which the 
warranty text begins.



Sec.  701.2  Scope.

    The regulations in this part establish requirements for warrantors 
for disclosing the terms and conditions of written warranties on 
consumer products actually costing the consumer more than $15.00.



Sec.  701.3  Written warranty terms.

    (a) Any warrantor warranting to a consumer by means of a written 
warranty a consumer product actually costing the consumer more than 
$15.00 shall clearly and conspicuously disclose in a single document in 
simple and readily understood language, the following items of 
information:
    (1) The identity of the party or parties to whom the written 
warranty is extended, if the enforceability of the written warranty is 
limited to the original consumer purchaser or is otherwise limited to 
persons other than every consumer owner during the term of the warranty;
    (2) A clear description and identification of products, or parts, or 
characteristics, or components or properties covered by and where 
necessary for clarification, excluded from the warranty;

[[Page 539]]

    (3) A statement of what the warrantor will do in the event of a 
defect, malfunction or failure to conform with the written warranty, 
including the items or services the warrantor will pay for or provide, 
and, where necessary for clarification, those which the warrantor will 
not pay for or provide;
    (4) The point in time or event on which the warranty term commences, 
if different from the purchase date, and the time period or other 
measurement of warranty duration;
    (5) A step-by-step explanation of the procedure which the consumer 
should follow in order to obtain performance of any warranty obligation, 
including the persons or class of persons authorized to perform warranty 
obligations. This includes the name(s) of the warrantor(s), together 
with: The mailing address(es) of the warrantor(s), and/or the name or 
title and the address of any employee or department of the warrantor 
responsible for the performance of warranty obligations, and/or a 
telephone number which consumers may use without charge to obtain 
information on warranty performance;
    (6) Information respecting the availability of any informal dispute 
settlement mechanism elected by the warrantor in compliance with part 
703 of this subchapter;
    (7) Any limitations on the duration of implied warranties, disclosed 
on the face of the warranty as provided in section 108 of the Act, 
accompanied by the following statement:

Some States do not allow limitations on how long an implied warranty 
lasts, so the above limitation may not apply to you.

    (8) Any exclusions of or limitations on relief such as incidental or 
consequential damages, accompanied by the following statement, which may 
be combined with the statement required in paragraph (a)(7) of this 
section:

Some States do not allow the exclusion or limitation of incidental or 
consequential damages, so the above limitation or exclusion may not 
apply to you.

    (9) A statement in the following language:

This warranty gives you specific legal rights, and you may also have 
other rights which vary from State to State.

    (b) Paragraphs (a) (1) through (9) of this section shall not be 
applicable with respect to statements of general policy on emblems, 
seals or insignias issued by third parties promising replacement or 
refund if a consumer product is defective, which statements contain no 
representation or assurance of the quality or performance 
characteristics of the product; Provided That: (1) The disclosures 
required by paragraphs (a) (1) through (9) of this section are published 
by such third parties in each issue of a publication with a general 
circulation, and (2) such disclosures are provided free of charge to any 
consumer upon written request.



Sec.  701.4  Owner registration cards.

    When a warrantor employs any card such as an owner's registration 
card, a warranty registration card, or the like, and the return of such 
card is a condition precedent to warranty coverage and performance, the 
warrantor shall disclose this fact in the warranty. If the return of 
such card reasonably appears to be a condition precedent to warranty 
coverage and performance, but is not such a condition, that fact shall 
be disclosed in the warranty.



PART 702_PRE-SALE AVAILABILITY OF WRITTEN WARRANTY TERMS--Table of Contents




Sec.
702.1 Definitions.
702.2 Scope.
702.3 Pre-sale availability of written warranty terms.

    Authority: 15 U.S.C. 2302 and 2309.

    Source: 40 FR 60189, Dec. 31, 1975, unless otherwise noted.



Sec.  702.1  Definitions.

    (a) The Act means the Magnuson-Moss Warranty Federal Trade 
Commission Improvement Act, 15 U.S.C. 2301, et seq.
    (b) Consumer product means any tangible personal property which is 
distributed in commerce and which is normally used for personal, family, 
or household purposes (including any such property intended to be 
attached to or installed in any real property without regard to whether 
it is so attached or

[[Page 540]]

installed). Products which are purchased solely for commercial or 
industrial use are excluded solely for purposes of this part.
    (c) Written warranty means--
    (1) Any written affirmation of fact or written promise made in 
connection with the sale of a consumer product by a supplier to a buyer 
which relates to the nature of the material or workmanship and affirms 
or promises that such material or workmanship is defect free or will 
meet a specified level of performance over a specified period of time, 
or
    (2) Any undertaking in writing in connection with the sale by a 
supplier of a consumer product to refund, repair, replace or take other 
remedial action with respect to such product in the event that such 
product fails to meet the specifications set forth in the undertaking,

which written affirmation, promise, or undertaking becomes part of the 
basis of the bargain between a supplier and a buyer for purposes other 
than resale of such product.
    (d) Warrantor means any supplier or other person who gives or offers 
to give a written warranty.
    (e) Seller means any person who sells or offers for sale for 
purposes other than resale or use in the ordinary course of the buyer's 
business any consumer product.
    (f) Supplier means any person engaged in the business of making a 
consumer product directly or indirectly available to consumers.

[40 FR 60189, Dec. 31, 1975, as amended at 52 FR 7574, Mar. 12, 1987]



Sec.  702.2  Scope.

    The regulations in this part establish requirements for sellers and 
warrantors for making the terms of any written warranty on a consumer 
product available to the consumer prior to sale.



Sec.  702.3  Pre-sale availability of written warranty terms.

    The following requirements apply to consumer products actually 
costing the consumer more than $15.00:
    (a) Duties of seller. Except as provided in paragraphs (c) through 
(d) of this section, the seller of a consumer product with a written 
warranty shall make a text of the warranty readily available for 
examination by the prospective buyer by:
    (1) Displaying it in close proximity to the warranted product, or
    (2) Furnishing it upon request prior to sale and placing signs 
reasonably calculated to elicit the prospective buyer's attention in 
prominent locations in the store or department advising such prospective 
buyers of the availability of warranties upon request.
    (b) Duties of the warrantor. (1) A warrantor who gives a written 
warranty warranting to a consumer a consumer product actually costing 
the consumer more than $15.00 shall:
    (i) Provide sellers with warranty materials necessary for such 
sellers to comply with the requirements set forth in paragraph (a) of 
this section, by the use of one or more by the following means:
    (A) Providing a copy of the written warranty with every warranted 
consumer product; and/or
    (B) Providing a tag, sign, sticker, label, decal or other attachment 
to the product, which contains the full text of the written warranty; 
and/or
    (C) Printing on or otherwise attaching the text of the written 
warranty to the package, carton, or other container if that package, 
carton or other container is normally used for display purposes. If the 
warrantor elects this option a copy of the written warranty must also 
accompany the warranted product; and/or
    (D) Providing a notice, sign, or poster disclosing the text of a 
consumer product warranty. If the warrantor elects this option, a copy 
of the written warranty must also accompany each warranted product.
    (ii) Provide catalog, mail order, and door-to-door sellers with 
copies of written warranties necessary for such sellers to comply with 
the requirements set forth in paragraphs (c) and (d) of this section.
    (2) Paragraph (a)(1) of this section shall not be applicable with 
respect to statements of general policy on emblems, seals or insignias 
issued by third parties promising replacement or

[[Page 541]]

refund if a consumer product is defective, which statements contain no 
representation or assurance of the quality or performance 
characteristics of the product; provided that
    (i) The disclosures required by Sec.  701.3(a) (1) through (9) of 
this part are published by such third parties in each issue of a 
publication with a general circulation, and
    (ii) Such disclosures are provided free of charge to any consumer 
upon written request.
    (c) Catalog and mail order sales. (1) For purposes of this 
paragraph:
    (i) Catalog or mail order sales means any offer for sale, or any 
solicitation for an order for a consumer product with a written 
warranty, which includes instructions for ordering the product which do 
not require a personal visit to the seller's establishment.
    (ii) Close conjunction means on the page containing the description 
of the warranted product, or on the page facing that page.
    (2) Any seller who offers for sale to consumers consumer products 
with written warranties by means of a catalog or mail order solicitation 
shall:
    (i) Clearly and conspicuously disclose in such catalog or 
solicitation in close conjunction to the description of warranted 
product, or in an information section of the catalog or solicitation 
clearly referenced, including a page number, in close conjunction to the 
description of the warranted product, either:
    (A) The full text of the written warranty; or
    (B) That the written warranty can be obtained free upon specific 
written request, and the address where such warranty can be obtained. If 
this option is elected, such seller shall promptly provide a copy of any 
written warranty requested by the consumer.
    (d) Door-to-door sales. (1) For purposes of this paragraph:
    (i) Door-to-door sale means a sale of consumer products in which the 
seller or his representative personally solicits the sale, including 
those in response to or following an invitation by a buyer, and the 
buyer's agreement to offer to purchase is made at a place other than the 
place of business of the seller.
    (ii) Prospective buyer means an individual solicited by a door-to-
door seller to buy a consumer product who indicates sufficient interest 
in that consumer product or maintains sufficient contact with the seller 
for the seller reasonably to conclude that the person solicited is 
considering purchasing the product.
    (2) Any seller who offers for sale to consumers consumer products 
with written warranties by means of door-to-door sales shall, prior to 
the consummation of the sale, disclose the fact that the sales 
representative has copies of the warranties for the warranted products 
being offered for sale, which may be inspected by the prospective buyer 
at any time during the sales presentation. Such disclosure shall be made 
orally and shall be included in any written materials shown to 
prospective buyers.

[40 FR 60189, Dec. 31, 1975, as amended at 52 FR 7574, Mar. 12, 1987]



PART 703_INFORMAL DISPUTE SETTLEMENT PROCEDURES--Table of Contents




Sec.
703.1 Definitions.
703.2 Duties of warrantor.

                  Minimum Requirements of the Mechanism

703.3 Mechanism organization.
703.4 Qualification of members.
703.5 Operation of the Mechanism.
703.6 Recordkeeping.
703.7 Audits.
703.8 Openness of records and proceedings.

    Authority: 15 U.S.C. 2309 and 2310.

    Source: 40 FR 60215, Dec. 31, 1975, unless otherwise noted.



Sec.  703.1  Definitions.

    (a) The Act means the Magnuson-Moss Warranty--Federal Trade 
Commission Improvement Act, 15 U.S.C. 2301, et seq.
    (b) Consumer product means any tangible personal property which is 
distributed in commerce and which is normally used for personal, family, 
or household purposes (including any such property intended to be 
attached to or installed in any real property without

[[Page 542]]

regard to whether it is so attached or installed).
    (c) Written warranty means:
    (1) Any written affirmation of fact or written promise made in 
connection with the sale of a consumer product by a supplier to a buyer 
which relates to the nature of the material or workmanship and affirms 
or promises that such material or workmanship is defect free or will 
meet a specified level of performance over a specified period of time, 
or
    (2) Any undertaking in writing in connection with the sale by a 
supplier of a consumer product to refund, repair, replace, or take other 
remedial action with respect to such product in the event that such 
product fails to meet the specifications set forth in the undertaking, 
which written affirmation, promise or undertaking becomes part of the 
basis of the bargain between a supplier and a buyer for purposes other 
than resale of such product.
    (d) Warrantor means any person who gives or offers to give a written 
warranty which incorporates an informal dispute settlement mechanism.
    (e) Mechanism means an informal dispute settlement procedure which 
is incorporated into the terms of a written warranty to which any 
provision of Title I of the Act applies, as provided in section 110 of 
the Act.
    (f) Members means the person or persons within a Mechanism actually 
deciding disputes.
    (g) Consumer means a buyer (other than for purposes of resale) of 
any consumer product, any person to whom such product is transferred 
during the duration of a written warranty applicable to the product, and 
any other person who is entitled by the terms of such warranty or under 
applicable state law to enforce against the warrantor the obligations of 
the warranty.
    (h) On the face of the warranty means:
    (1) If the warranty is a single sheet with printing on both sides of 
the sheet, or if the warranty is comprised of more than one sheet, the 
page on which the warranty text begins;
    (2) If the warranty is included as part of a longer document, such 
as a use and care manual, the page in such document on which the 
warranty text begins.



Sec.  703.2  Duties of warrantor.

    (a) The warrantor shall not incorporate into the terms of a written 
warranty a Mechanism that fails to comply with the requirements 
contained in Sec. Sec.  703.3 through 703.8 of this part. This paragraph 
shall not prohibit a warrantor from incorporating into the terms of a 
written warranty the step-by-step procedure which the consumer should 
take in order to obtain performance of any obligation under the warranty 
as described in section 102(a)(7) of the Act and required by part 701 of 
this subchapter.
    (b) The warrantor shall disclose clearly and conspicuously at least 
the following information on the face of the written warranty:
    (1) A statement of the availability of the informal dispute 
settlement mechanism;
    (2) The name and address of the Mechanism, or the name and a 
telephone number of the Mechanism which consumers may use without 
charge;
    (3) A statement of any requirement that the consumer resort to the 
Mechanism before exercising rights or seeking remedies created by Title 
I of the Act; together with the disclosure that if a consumer chooses to 
seek redress by pursuing rights and remedies not created by Title I of 
the Act, resort to the Mechanism would not be required by any provision 
of the Act; and
    (4) A statement, if applicable, indicating where further information 
on the Mechanism can be found in materials accompanying the product, as 
provided in Sec.  703.2(c) of this section.
    (c) The warrantor shall include in the written warranty or in a 
separate section of materials accompanying the product, the following 
information:
    (1) Either (i) a form addressed to the Mechanism containing spaces 
requesting the information which the Mechanism may require for prompt 
resolution of warranty disputes; or (ii) a telephone number of the 
Mechanism which consumers may use without charge;
    (2) The name and address of the Mechanism;
    (3) A brief description of Mechanism procedures;
    (4) The time limits adhered to by the Mechanism; and

[[Page 543]]

    (5) The types of information which the Mechanism may require for 
prompt resolution of warranty disputes.
    (d) The warrantor shall take steps reasonably calculated to make 
consumers aware of the Mechanism's existence at the time consumers 
experience warranty disputes. Nothing contained in paragraphs (b), (c), 
or (d) of this section shall limit the warrantor's option to encourage 
consumers to seek redress directly from the warrantor as long as the 
warrantor does not expressly require consumers to seek redress directly 
from the warrantor. The warrantor shall proceed fairly and expeditiously 
to attempt to resolve all disputes submitted directly to the warrantor.
    (e) Whenever a dispute is submitted directly to the warrantor, the 
warrantor shall, within a reasonable time, decide whether, and to what 
extent, it will satisfy the consumer, and inform the consumer of its 
decision. In its notification to the consumer of its decision, the 
warrantor shall include the information required in Sec.  703.2 (b) and 
(c) of this section.
    (f) The warrantor shall:
    (1) Respond fully and promptly to reasonable requests by the 
Mechanism for information relating to disputes;
    (2) Upon notification of any decision of the Mechanism that would 
require action on the part of the warrantor, immediately notify the 
Mechanism whether, and to what extent, warrantor will abide by the 
decision; and
    (3) Perform any obligations it has agreed to.
    (g) The warrantor shall act in good faith in determining whether, 
and to what extent, it will abide by a Mechanism decision.
    (h) The warrantor shall comply with any reasonable requirements 
imposed by the Mechanism to fairly and expeditiously resolve warranty 
disputes.

                  Minimum Requirements of the Mechanism



Sec.  703.3  Mechanism organization.

    (a) The Mechanism shall be funded and competently staffed at a level 
sufficient to ensure fair and expeditious resolution of all disputes, 
and shall not charge consumers any fee for use of the Mechanism.
    (b) The warrantor and the sponsor of the Mechanism (if other than 
the warrantor) shall take all steps necessary to ensure that the 
Mechanism, and its members and staff, are sufficiently insulated from 
the warrantor and the sponsor, so that the decisions of the members and 
the performance of the staff are not influenced by either the warrantor 
or the sponsor. Necessary steps shall include, at a minimum, committing 
funds in advance, basing personnel decisions solely on merit, and not 
assigning conflicting warrantor or sponsor duties to Mechanism staff 
persons.
    (c) The Mechanism shall impose any other reasonable requirements 
necessary to ensure that the members and staff act fairly and 
expeditiously in each dispute.



Sec.  703.4  Qualification of members.

    (a) No member deciding a dispute shall be:
    (1) A party to the dispute, or an employee or agent of a party other 
than for purposes of deciding disputes; or
    (2) A person who is or may become a party in any legal action, 
including but not limited to class actions, relating to the product or 
complaint in dispute, or an employee or agent of such person other than 
for purposes of deciding disputes. For purposes of this paragraph (a) a 
person shall not be considered a ``party'' solely because he or she 
acquires or owns an interest in a party solely for investment, and the 
acquisition or ownership of an interest which is offered to the general 
public shall be prima facie evidence of its acquisition or ownership 
solely for investment.
    (b) When one or two members are deciding a dispute, all shall be 
persons having no direct involvement in the manufacture, distribution, 
sale or service of any product. When three or more members are deciding 
a dispute, at least two-thirds shall be persons having no direct 
involvement in the manufacture, distribution, sale or service of any 
product. ``Direct involvement'' shall not include acquiring or owning an 
interest solely for investment, and the acquisition or ownership of an 
interest which is offered to the general

[[Page 544]]

public shall be prima facie evidence of its acquisition or ownership 
solely for investment. Nothing contained in this section shall prevent 
the members from consulting with any persons knowledgeable in the 
technical, commercial or other areas relating to the product which is 
the subject of the dispute.
    (c) Members shall be persons interested in the fair and expeditious 
settlement of consumer disputes.



Sec.  703.5  Operation of the Mechanism.

    (a) The Mechanism shall establish written operating procedures which 
shall include at least those items specified in paragraphs (b) through 
(j) of this section. Copies of the written procedures shall be made 
available to any person upon request.
    (b) Upon notification of a dispute, the Mechanism shall immediately 
inform both the warrantor and the consumer of receipt of the dispute.
    (c) The Mechanism shall investigate, gather and organize all 
information necessary for a fair and expeditious decision in each 
dispute. When any evidence gathered by or submitted to the Mechanism 
raises issues relating to the number of repair attempts, the length of 
repair periods, the possibility of unreasonable use of the product, or 
any other issues relevant in light of Title I of the Act (or rules 
thereunder), including issues relating to consequential damages, or any 
other remedy under the Act (or rules thereunder), the Mechanism shall 
investigate these issues. When information which will or may be used in 
the decision, submitted by one party, or a consultant under Sec.  
703.4(b) of this part, or any other source tends to contradict facts 
submitted by the other party, the Mechanism shall clearly, accurately, 
and completely disclose to both parties the contradictory information 
(and its source) and shall provide both parties an opportunity to 
explain or rebut the information and to submit additional materials. The 
Mechanism shall not require any information not reasonably necessary to 
decide the dispute.
    (d) If the dispute has not been settled, the Mechanism shall, as 
expeditiously as possible but at least within 40 days of notification of 
the dispute, except as provided in paragraph (e) of this section:
    (1) Render a fair decision based on the information gathered as 
described in paragraph (c) of this section, and on any information 
submitted at an oral presentation which conforms to the requirements of 
paragraph (f) of this section (A decision shall include any remedies 
appropriate under the circumstances, including repair, replacement, 
refund, reimbursement for expenses, compensation for damages, and any 
other remedies available under the written warranty or the Act (or rules 
thereunder); and a decision shall state a specified reasonable time for 
performance);
    (2) Disclose to the warrantor its decision and the reasons therefor;
    (3) If the decision would require action on the part of the 
warrantor, determine whether, and to what extent, warrantor will abide 
by its decision; and
    (4) Disclose to the consumer its decision, the reasons therefor, 
warrantor's intended actions (if the decision would require action on 
the part of the warrantor), and the information described in paragraph 
(g) of this section. For purposes of paragraph (d) of this section a 
dispute shall be deemed settled when the Mechanism has ascertained from 
the consumer that:
    (i) The dispute has been settled to the consumer's satisfaction; and
    (ii) The settlement contains a specified reasonable time for 
performance.
    (e) The Mechanism may delay the performance of its duties under 
paragraph (d) of this section beyond the 40 day time limit:
    (1) Where the period of delay is due solely to failure of a consumer 
to provide promptly his or her name and address, brand name and model 
number of the product involved, and a statement as to the nature of the 
defect or other complaint; or
    (2) For a 7 day period in those cases where the consumer has made no 
attempt to seek redress directly from the warrantor.
    (f) The Mechanism may allow an oral presentation by a party to a 
dispute (or a party's representative) only if:
    (1) Both warrantor and consumer expressly agree to the presentation;

[[Page 545]]

    (2) Prior to agreement the Mechanism fully discloses to the consumer 
the following information:
    (i) That the presentation by either party will take place only if 
both parties so agree, but that if they agree, and one party fails to 
appear at the agreed upon time and place, the presentation by the other 
party may still be allowed;
    (ii) That the members will decide the dispute whether or not an oral 
presentation is made;
    (iii) The proposed date, time and place for the presentation; and
    (iv) A brief description of what will occur at the presentation 
including, if applicable, parties' rights to bring witnesses and/or 
counsel; and
    (3) Each party has the right to be present during the other party's 
oral presentation. Nothing contained in this paragraph (b) of this 
section shall preclude the Mechanism from allowing an oral presentation 
by one party, if the other party fails to appear at the agreed upon time 
and place, as long as all of the requirements of this paragraph have 
been satisfied.
    (g) The Mechanism shall inform the consumer, at the time of 
disclosure required in paragraph (d) of this section that:
    (1) If he or she is dissatisfied with its decision or warrantor's 
intended actions, or eventual performance, legal remedies, including use 
of small claims court, may be pursued;
    (2) The Mechanism's decision is admissible in evidence as provided 
in section 110(a)(3) of the Act; and
    (3) The consumer may obtain, at reasonable cost, copies of all 
Mechanism records relating to the consumer's dispute.
    (h) If the warrantor has agreed to perform any obligations, either 
as part of a settlement agreed to after notification to the Mechanism of 
the dispute or as a result of a decision under paragraph (d) of this 
section, the Mechanism shall ascertain from the consumer within 10 
working days of the date for performance whether performance has 
occurred.
    (i) A requirement that a consumer resort to the Mechanism prior to 
commencement of an action under section 110(d) of the Act shall be 
satisfied 40 days after notification to the Mechanism of the dispute or 
when the Mechanism completes all of its duties under paragraph (d) of 
this section, whichever occurs sooner. Except that, if the Mechanism 
delays performance of its paragraph (d) of this section duties as 
allowed by paragraph (e) of this section, the requirement that the 
consumer initially resort to the Mechanism shall not be satisfied until 
the period of delay allowed by paragraph (e) of this section has ended.
    (j) Decisions of the Mechanism shall not be legally binding on any 
person. However, the warrantor shall act in good faith, as provided in 
Sec.  703.2(g) of this part. In any civil action arising out of a 
warranty obligation and relating to a matter considered by the 
Mechanism, any decision of the Mechanism shall be admissible in 
evidence, as provided in section 110(a)(3) of the Act.



Sec.  703.6  Recordkeeping.

    (a) The Mechanism shall maintain records on each dispute referred to 
it which shall include:
    (1) Name, address and telephone number of the consumer;
    (2) Name, address, telephone number and contact person of the 
warrantor;
    (3) Brand name and model number of the product involved;
    (4) The date of receipt of the dispute and the date of disclosure to 
the consumer of the decision;
    (5) All letters or other written documents submitted by either 
party;
    (6) All other evidence collected by the Mechanism relating to the 
dispute, including summaries of relevant and material portions of 
telephone calls and meetings between the Mechanism and any other person 
(including consultants described in Sec.  703.4(b) of this part);
    (7) A summary of any relevant and material information presented by 
either party at an oral presentation;
    (8) The decision of the members including information as to date, 
time and place of meeting, and the identity of members voting; or 
information on any other resolution;
    (9) A copy of the disclosure to the parties of the decision;
    (10) A statement of the warrantor's intended action(s);

[[Page 546]]

    (11) Copies of follow-up letters (or summaries of relevant and 
material portions of follow-up telephone calls) to the consumer, and 
responses thereto; and
    (12) Any other documents and communications (or summaries of 
relevant and material portions of oral communications) relating to the 
dispute.
    (b) The Mechanism shall maintain an index of each warrantor's 
disputes grouped under brand name and sub-grouped under product model.
    (c) The Mechanism shall maintain an index for each warrantor as will 
show:
    (1) All disputes in which the warrantor has promised some 
performance (either by settlement or in response to a Mechanism 
decision) and has failed to comply; and
    (2) All disputes in which the warrantor has refused to abide by a 
Mechanism decision.
    (d) The Mechanism shall maintain an index as will show all disputes 
delayed beyond 40 days.
    (e) The Mechanism shall compile semi-annually and maintain 
statistics which show the number and percent of disputes in each of the 
following categories:
    (1) Resolved by staff of the Mechanism and warrantor has complied;
    (2) Resolved by staff of the Mechanism, time for compliance has 
occurred, and warrantor has not complied;
    (3) Resolved by staff of the Mechanism and time for compliance has 
not yet occurred;
    (4) Decided by members and warrantor has complied;
    (5) Decided by members, time for compliance has occurred, and 
warrantor has not complied;
    (6) Decided by members and time for compliance has not yet occurred;
    (7) Decided by members adverse to the consumer;
    (8) No jurisdiction;
    (9) Decision delayed beyond 40 days under Sec.  703.5(e)(1) of this 
part;
    (10) Decision delayed beyond 40 days under Sec.  703.5(e)(2) of this 
part;
    (11) Decision delayed beyond 40 days for any other reason; and
    (12) Pending decision.
    (f) The Mechanism shall retain all records specified in paragraphs 
(a) through (e) of this section for at least 4 years after final 
disposition of the dispute.



Sec.  703.7  Audits.

    (a) The Mechanism shall have an audit conducted at least annually, 
to determine whether the Mechanism and its implementation are in 
compliance with this part. All records of the Mechanism required to be 
kept under Sec.  703.6 of this part shall be available for audit.
    (b) Each audit provided for in paragraph (a) of this section shall 
include at a minimum the following:
    (1) Evaluation of warrantors' efforts to make consumers aware of the 
Mechanism's existence as required in Sec.  703.2(d) of this part;
    (2) Review of the indexes maintained pursuant to Sec.  703.6 (b), 
(c), and (d) of this part; and
    (3) Analysis of a random sample of disputes handled by the Mechanism 
to determine the following:
    (i) Adequacy of the Mechanism's complaint and other forms, 
investigation, mediation and follow-up efforts, and other aspects of 
complaint handling; and
    (ii) Accuracy of the Mechanism's statistical compilations under 
Sec.  703.6(e) of this part. (For purposes of this subparagraph 
``analysis'' shall include oral or written contact with the consumers 
involved in each of the disputes in the random sample.)
    (c) A report of each audit under this section shall be submitted to 
the Federal Trade Commission, and shall be made available to any person 
at reasonable cost. The Mechanism may direct its auditor to delete names 
of parties to disputes, and identity of products involved, from the 
audit report.
    (d) Auditors shall be selected by the Mechanism. No auditor may be 
involved with the Mechanism as a warrantor, sponsor or member, or 
employee or agent thereof, other than for purposes of the audit.



Sec.  703.8  Openness of records and proceedings.

    (a) The statistical summaries specified in Sec.  703.6(e) of this 
part shall be available to any person for inspection and copying.

[[Page 547]]

    (b) Except as provided under paragraphs (a) and (e) of this section, 
and paragraph (c) of Sec.  703.7 of this part, all records of the 
Mechanism may be kept confidential, or made available only on such terms 
and conditions, or in such form, as the Mechanism shall permit.
    (c) The policy of the Mechanism with respect to records made 
available at the Mechanism's option shall be set out in the procedures 
under Sec.  703.5(a) of this part; the policy shall be applied uniformly 
to all requests for access to or copies of such records.
    (d) Meetings of the members to hear and decide disputes shall be 
open to observers on reasonable and nondiscriminatory terms. The 
identity of the parties and products involved in disputes need not be 
disclosed at meetings.
    (e) Upon request the Mechanism shall provide to either party to a 
dispute:
    (1) Access to all records relating to the dispute; and
    (2) Copies of any records relating to the dispute, at reasonable 
cost.
    (f) The Mechanism shall make available to any person upon request, 
information relating to the qualifications of Mechanism staff and 
members.

[[Page 548]]



 SUBCHAPTER H_RULES, REGULATIONS, STATEMENTS AND INTERPRETATIONS UNDER 
        THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976





PART 801_COVERAGE RULES--Table of Contents




Sec.
801.1 Definitions.
801.2 Acquiring and acquired persons.
801.3 Activities in or affecting commerce.
801.4 Secondary acquisitions.
801.10 Value of voting securities and assets to be acquired.
801.11 Annual net sales and total assets.
801.12 Calculating percentage of voting securities.
801.13 Voting securities or assets to be held as a result of 
          acquisition.
801.14 Aggregate total amount of voting securities and assets.
801.15 Aggregation of voting securities and assets the acquisition of 
          which was exempt.
801.20 Acquisitions subsequent to exceeding threshold.
801.21 Securities and cash not considered assets when acquired.
801.30 Tender offers and acquisitions of voting securities from third 
          parties.
801.31 Acquisitions of voting securities by offerees in tender offers.
801.32 Conversion and acquisition.
801.33 Consummation of an acquisition by acceptance of tendered shares 
          of payment.
801.40 Formation of joint venture or other corporations.
801.90 Transactions or devices for avoidance.

    Authority: 15 U.S.C. 18a(d).

    Source: 43 FR 33537, July 31, 1978, unless otherwise noted.



Sec.  801.1  Definitions.

    When used in the act and these rules--
    (a)(1) Person. Except as provided in paragraphs (a) and (b) of Sec.  
801.12, the term person means an ultimate parent entity and all entities 
which it controls directly or indirectly.

    Examples: 1. In the case of corporations, ``person'' encompasses the 
entire corporate structure, including all parent corporations, 
subsidiaries and divisions (whether consolidated or unconsolidated, and 
whether incorporated or unincorporated), and all related corporations 
under common control with any of the foregoing.
    2. Corporations A and B are each directly controlled by the same 
foreign state. They are not included within the same ``person,'' 
although the corporations are under common control, because the foreign 
state which controls them is not an ``entity'' (see Sec.  801.1(a)(2)). 
Corporations A and B* are the ultimate parent entities within persons 
``A'', and ``B'' which include any entities each may control.
---------------------------------------------------------------------------

    * Throughout the examples to the rules, persons are designated 
(``A'', ``B,'' etc.) with quotation marks, and entities are designated 
(A, B, etc.) without quotation marks.
---------------------------------------------------------------------------

    3. Since a natural person is an entity (see Sec.  801.1(a)(2)), a 
natural person and a corporation which he or she controls are part of 
the same ``person.'' If that natural person controls two otherwise 
separate corporations, both corporations and the natural person are all 
part of the same ``person.''
    4. See the example to Sec.  801.2(a).

    (2) Entity. The term entity means any natural person, corporation, 
company, partnership, joint venture, association, joint-stock company, 
trust, estate of a deceased natural person, foundation, fund, 
institution, society, union, or club, whether incorporated or not, 
wherever located and of whatever citizenship, or any receiver, trustee 
in bankruptcy or similar official or any liquidating agent for any of 
the foregoing, in his or her capacity as such; or any joint venture or 
other corporation which has not been formed but the acquisition of the 
voting securities or other interest in which, if already formed, would 
require notification under the act and these rules: Provided, however, 
That the term ``entity'' shall not include any foreign state, foreign 
government, or agency thereof (other than a corporation engaged in 
commerce), nor the United States, any of the States thereof, or any 
political subdivision or agency of either (other than a corporation 
engaged in commerce).
    (3) Ultimate parent entity. The term ultimate parent entity means an 
entity which is not controlled by any other entity.

    Examples: 1. If corporation A holds 100 percent of the stock of 
subsidiary B, and B holds 75 percent of the stock of its subsidiary C, 
corporation A is the ultimate parent entity,

[[Page 549]]

since it controls subsidiary B directly and subsidiary C indirectly, and 
since it is the entity within the person which is not controlled by any 
other entity.
    2. If corporation A is controlled by natural person D, natural 
person D is the ultimate parent entity.
    3. P and Q are the ultimate parent entities within persons ``P'' and 
``Q.'' If P and Q each own 50 percent of the voting securities of R, 
then P and Q are both ultimate parents of R, and R is part of both 
persons ``P'' and ``Q.''

    (b) Control. The term control (as used in the terms control(s), 
controlling, controlled by and under common control with) means:
    (1) Either. (i) Holding 50 percent or more of the outstanding voting 
securities of an issuer or
    (ii) In the case of an entity that has no outstanding voting 
securities, having the right to 50 percent or more of the profits of the 
entity, or having the right in the event of dissolution to 50 percent or 
more of the assets of the entity; or
    (2) Having the contractual power presently to designate 50 percent 
or more of the directors of a corporation, or in the case of 
unincorporated entities, of individuals exercising similar functions.

    Examples: 1. Corporation A holds 100 percent of the stock of 
corporation B, 75 percent of the stock of corporation C, 50 percent of 
the stock of corporation D, and 30 percent of the stock of corporation 
E. Corporation A controls corporations B, C and D, but not corporation 
E. Corporation A is the ultimate parent entity of a person comprised of 
corporations A, B, C and D, and each of these corporations (but not 
corporation E) is ``included within the person.''
    2. A statutory limited partnership agreement provides as follows: 
The general partner ``A'' is entitled to 50 percent of the partnership 
profits, ``B'' is entitled to 40 percent of the profits and ``C'' is 
entitled to 10 percent of the profits. Upon dissolution, ``B'' is 
entitled to 75 percent of the partnership assets and ``C'' is entitled 
to 25 percent of those assets. All limited and general partners are 
entitled to vote on the following matters: the dissolution of the 
partnership, the transfer of assets not in the ordinary course of 
business, any change in the nature of the business, and the removal of 
the general partner. The interest of each partner is evidenced by an 
ownership certificate that is transferable under the terms of the 
partnership agreement and is subject to the Securities Act of 1933. For 
purposes of these rules, control of this partnership is determined by 
subparagraph (1)(ii) of this paragraph. Although partnership interests 
may be securities and have some voting rights attached to them, they do 
not entitle the owner of that interest to vote for a corporate 
``director'' or ``an individual exercising similar functions'' as 
required by Sec.  801.1(f)(1) below. Thus control of a partnership is 
not determined on the basis of either subparagraph (1)(i) or (2) of this 
paragraph. Consequently, ``A'' is deemed to control the partnership 
because of its right to 50 percent of the partnership's profits. ``B'' 
is also deemed to control the partnership because it is entitled to 75 
percent of the partnership's assets upon dissolution.
    3. ``A'' is a nonprofit charitable foundation that has formed a 
partnership joint venture with ``B,'' a nonprofit university, to 
establish C, a nonprofit hospital corporation that does not issue voting 
securities. Pursuant to its charter all surplus revenue from the 
hospital in excess of expenses and necessary capital investments is to 
be disbursed evenly to ``A'' and ``B.'' In the event of dissolution of 
the hospital corporation, the assets of the hospital are to be 
contributed to a local charitable medical facility then in need of 
financial assistance. Notwithstanding the hospital's designation of its 
disbursement funds as surplus rather than profits to maintain its 
charitable image, ``A'' and ``B'' would each be deemed to control C, 
pursuant to Sec.  801.1(b)(1)(ii), because each is entitled to 50 
percent of the excess of the hospital's revenues over expenditures.
    4. ``A'' is entitled to 50 percent of the profits of partnership B 
and 50 percent of the profits of partnership C. B and C form a 
partnership E with ``D'' in which each entity has a right to one-third 
of the profits. When E acquires company X, ``A'' must report the 
transaction (assuming it is otherwise reportable). Pursuant to Sec.  
801.1(b)(1)(ii), E is deemed to be controlled by ``A,'' even though 
``A'' ultimately will receive only one-third of the profits of E. 
Because B and C are considered as part of ``A,'' the rules attribute all 
profits to which B and C are entitled (two-thirds of the profits of E in 
this example) to ``A.'

    (c) Hold. (1) Subject to the provisions of paragraphs (c) (2) 
through (8) of this section, the term hold (as used in the terms 
hold(s), holding, holder and held) means beneficial ownership, whether 
direct, or indirect through fiduciaries, agents, controlled entities or 
other means.

    Example: If a stockbroker has stock in ``street name'' for the 
account of a natural person, only the natural person (who has beneficial 
ownership) and not the stockbroker (which may have record title) 
``holds'' that stock.


[[Page 550]]


    (2) The holdings of spouses and their minor children shall be 
holdings of each of them.
    (3) Except for a common trust fund or collective investment fund 
within the meaning of 12 CFR 9.18(a) (both of which are hereafter 
referred to in this paragraph as ``collective investment funds''), and 
any revocable trust or an irrevocable trust in which the settlor retains 
a reversionary interest in the corpus, a trust, including a pension 
trust, shall hold all assets and voting securities constituting the 
corpus of the trust.

    Example: Under this paragraph the trust--and not the trustee--
``holds'' the voting securities and assets constituting the corpus of 
any irrevocable trust (in which the settlor retains no reversionary 
interest, and which is not a collective investment fund). Therefore, the 
trustee need not aggregate its holdings of any other assets or voting 
securities with the holdings of the trust for purposes of determining 
whether the requirements of the act apply to an acquisition by the 
trust. Similarly, the trustee, if making an acquisition for its own 
account, need not aggregate its holdings with those of any trusts for 
which it serves as trustee. (However, the trustee must aggregate any 
collective investment funds which it administers; see paragraph (c)(6) 
of this section.)

    (4) The assets and voting securities constituting the corpus of a 
revocable trust or the corpus of an irrevocable trust in which the 
settlor(s) retain(s) a reversionary interest in the corpus shall be 
holdings of the settlor(s) of such trust.
    (5) Except as provided in paragraph (c)(4) of this section, 
beneficiaries of a trust, including a pension trust or a collective 
investment fund, shall not hold any assets or voting securities 
constituting the corpus of such trust.
    (6) A bank or trust company which administers one or more collective 
investment funds shall hold all assets and voting securities 
constituting the corpus of each such fund.

    Example: Suppose A, a bank or trust company, administers collective 
investment funds W, X, Y and Z. Whenever person ``A'' is to make an 
acquisition, whether of not on behalf of one or more of the funds, it 
must aggregate the holdings of W, X, Y and Z in determining whether the 
requirements of the act apply to the acquisition.

    (7) An insurance company shall hold all assets and voting securities 
held for the benefit of any general account of, or any separate account 
administered by, such company.
    (8) A person holds all assets and voting securities held by the 
entities included within it; in addition to its own holding, an entity 
holds all assets and voting securities held by the entities which it 
controls directly or indirectly.
    (d) Affiliate. An entity is an affiliate of a person if it is 
controlled, directly or indirectly, by the ultimate parent entity of 
such person.
    (e)(1)(i) United States person. The term United States person means 
a person the ultimate parent entity of which--
    (A) Is incorporated in the United States, is organized under the 
laws of the United States or has its principal offices within the United 
States; or
    (B) If a natural person, either is a citizen of the United States or 
resides in the United States.
    (ii) United States issuer. The term United States issuer means an 
issuer which is incorporated in the United States, is organized under 
the laws of the United States or has its principal offices within the 
United States.
    (2)(i) Foreign person. The term foreign person means a person the 
ultimate parent entity of which--
    (A) Is not incorporated in the United States, is not organized under 
the laws of the United States and does not have its principal offices 
within the United States; or
    (B) If a natural person, neither is a citizen of the United States 
nor resides in the United States.
    (ii) Foreign issuer. The term foreign issuer means an issuer which 
is not incorporated in the United States, is not organized under the 
laws of the United States and does not have its principal offices within 
the United States.
    (f)(1) Voting securities. The term voting securities means any 
securities which at present or upon conversion entitle the owner or 
holder thereof to vote for the election of directors of the issuer, or 
of an entity included within the same person as the issuer, or, with 
respect to unincorporated entities, individuals exercising similar 
functions.
    (2) Convertible voting security. The term convertible voting 
security means a

[[Page 551]]

voting security which presently does not entitle its owner or holder to 
vote for directors of any entity.
    (3) Conversion. The term conversion means the exercise of a right 
inherent in the ownership or holding of particular voting securities to 
exchange such securities for securities which presently entitle the 
owner or holder to vote for directors of the issuer or of any entity 
included within the same person as the issuer.

    Examples: 1. The acquisition of convertible debentures which are 
convertible into common stock is an acquisition of ``voting 
securities.'' However, Sec.  802.31 exempts the acquisition of such 
securities from the requirements of the act, provided that they have no 
present voting rights.
    2. Options and warrants are also ``voting securities'' for purposes 
of the act, because they can be exchanged for securities with present 
voting rights. Section 802.31 exempts the acquisition of options and 
warrants as well, since they do not themselves have present voting 
rights and hence are convertible voting securities. Notification may be 
required prior to exercising options and warrants, however.
    3. Assume that X has issued preferred shares which presently entitle 
the holder to vote for directors of X, and that these shares are 
convertible into common shares of X. Because the preferred shares confer 
a present right to vote for directors of X, they are ``voting 
securities.'' (See Sec.  801.1(f)(1).) They are not ``convertible voting 
securities,'' however, because the definition of that term excludes 
securities which confer a present right to vote for directors of any 
entity. (See Sec.  801.1(f)(2).) Thus, an acquisition of these preferred 
shares issued by X would not be exempt as an acquisition of 
``convertible voting securities.'' (See Sec.  802.31.) If the criteria 
in section 7A(a) are met, an acquisition of X's preferred shares would 
be subject to the reporting and waiting period requirements of the Act. 
Moreover, the conversion of these preferred shares into common shares of 
X would also be potentially reportable, since the holder would be 
exercising a right to exchange particular voting securities for 
different voting securities having a present right to vote for directors 
of the issuer. Because this exchange would be a ``conversion,'' Sec.  
801.30 would apply. (See Sec.  801.30(a)(6).)

    (g)(1) Tender offer. The term tender offer means any offer to 
purchase voting securities which is a tender offer within the meaning of 
section 14 of the Securities Exchange Act of 1934, 15 U.S.C. 78n.
    (2) Cash tender offer. The term cash tender offer means a tender 
offer in which cash is the only consideration offered to the holders of 
the voting securities to be acquired.
    (3) Non-cash tender offer. The term non-cash tender offer means any 
tender offer which is not a cash tender offer.
    (h) Notification threshold. The term ``notification threshold'' 
means:
    (1) An aggregate total amount of voting securities of the acquired 
person valued at greater than $50 million but less than $100 million;
    (2) An aggregate total amount of voting securities of the acquired 
person valued at $100 million or greater but less than $500 million;
    (3) An aggregate total amount of voting securities of the acquired 
person valued at $500 million or greater;
    (4) Twenty-five percent of the outstanding voting securities of an 
issuer if valued at greater than $1 billion; or
    (5) Fifty percent of the outstanding voting securities of an issuer 
if valued at greater than $50 million.
    (i)(1) Solely for the purpose of investment. Voting securities are 
held or acquired ``solely for the purpose of investment'' if the person 
holding or acquiring such voting securities has no intention of 
participating in the formulation, determination, or direction of the 
basic business decisions of the issuer.

    Example: If a person holds stock ``solely for the purpose of 
investment'' and thereafter decides to influence or participate in 
management of the issuer of that stock, the stock is no longer held 
``solely for the purpose of investment.''

    (2) Investment assets. The term investment assets means cash, 
deposits in financial institutions, other money market instruments, and 
instruments evidencing government obligations.
    (j) Engaged in manufacturing. A person is engaged in manufacturing 
if it produces and derives annual sales or revenues in excess of $1 
million from products within industries in Sectors 31-33 as coded by the 
North American Industrial Classification System (1997 Edition) published 
by the Executive Office of the President, Office of Management and 
Budget.
    (k) United States. The term United States shall include the several 
States,

[[Page 552]]

the territories, possessions, and commonwealths of the United States, 
and the District of Columbia.
    (l) Commerce. The term commerce shall have the meaning ascribed to 
that term in section 1 of the Clayton Act, 15 U.S.C. 12, or section 4 of 
the Federal Trade Commission Act, 15 U.S.C. 44.
    (m) The act. References to ``the act'' refer to Section 7A of the 
Clayton Act, 15 U.S.C. 18a, as added by section 201 of the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, Pub. L. 94-435, 90 Stat. 
1390, and as amended by Pub. L. 106-553, 114 Stat. 2762. References to 
``Section 7A( )'' refer to subsections of Section 7A of the Clayton Act. 
References to ``this section'' refer to the section of these rules in 
which the term appears.

[43 FR 33537, July 31, 1978, as amended at 48 FR 34429, July 29, 1983; 
52 FR 20063, May 29, 1987; 66 FR 8687, Feb. 1, 2001; 66 FR 23565, May 9, 
2001; 68 FR 2430, Jan. 17, 2003]



Sec.  801.2  Acquiring and acquired persons.

    (a) Any person which, as a result of an acquisition, will hold 
voting securities or assets, either directly or indirectly, or through 
fiduciaries, agents, or other entities acting on behalf of such person, 
is an acquiring person.

    Example: Assume that corporations A and B, which are each ultimate 
parent entitles of their respective ``persons,'' created a joint 
venture, corporation V, and that each holds half of V's shares. 
Therefore, A and B each control V (see Sec.  801.1(b)), and V is 
included within two persons, ``A'' and ``B.'' Under this section, if V 
is to acquire corporation X, both ``A'' and ``B'' are acquiring persons.

    (b) Except as provided in paragraphs (a) and (b) of Sec.  801.12, 
the person(s) within which the entity whose assets or voting securities 
are being acquired is included, is an acquired person.

    Examples: 1. Assume that person ``Q'' will acquire voting securities 
of corporation X held by ``P'' and that X is not included within person 
``P.'' Under this section, the acquired person is the person within 
which X is included, and is not ``P.''
    2. In the example to paragraph (a) of this section, if V were to be 
acquired by X, then both ``A'' and ``B'' would be acquired persons.

    (c) For purposes of the act and these rules, a person may be an 
acquiring person and an acquired person with respect to separate 
acquisitions which comprise a single transaction.
    (d)(1)(i) Mergers and consolidations are transactions subject to the 
act and shall be treated as acquisitions of voting securities.
    (ii) In a merger, the person which, after consummation, will include 
the corporation in existence prior to consummation which is designated 
as the surviving corporation in the plan, agreement, or certificate of 
merger required to be filed with State authorities to effectuate the 
transaction shall be deemed to have made an acquisition of voting 
securities.
    (2)(i) Any person party to a merger or consolidation is an acquiring 
person if, as a result of the transaction, such person will hold any 
assets or voting securities which it did not hold prior to the 
transaction.
    (ii) Any person party to a merger or consolidation is an acquired 
person if, as a result of the transaction, the assets or voting 
securities of any entity included within such person will be held by any 
other person.
    (iii) All persons party to a transaction as a result of which all 
parties will lose their separate pre-acquisition identities shall be 
both acquiring and acquired persons.

    Examples: 1. Corporation A (the ultimate parent entity included 
within person ``A'') proposes to acquire Y, a wholly-owned subsidiary of 
B (the ultimate parent entity included within person ``B''). The 
transaction is to be carried out by merging Y into X, a wholly-owned 
subsidiary of A, with X surviving, and by distributing the assets of X 
to B, the only shareholder of Y. The assets of X consist solely of cash 
and the voting securities of C, an entity unrelated to ``A'' or ``B''. 
Since X is designated the surviving corporation in the plan or agreement 
of merger or consolidation and since X will be included in ``A'' after 
consummation of the transaction, ``A'' will be deemed to have made an 
acquisition of voting securities. In this acquisition, ``A'' is an 
acquiring person because it will hold assets or voting securities it did 
not hold prior to the transaction, and ``B'' is an acquired person 
because the assets or the voting securities of an entity previously 
included within it will be held by A as a result of the acquisition. B 
will hold the cash and voting securities of C as a result of the 
transaction, but since Sec.  801.21 applies, this acquisition is not 
reportable. ``A'' is therefore an acquiring person only, and ``B'' is an 
acquired person only. ``B'' may, however,

[[Page 553]]

have a separate reporting obligation as an acquiring person in a 
separate transaction involving the voting securities of C.
    2. In the above example, suppose the consideration for Y consists of 
$8 million worth of the voting securities of A. With regard to the 
transfer of this consideration, ``B'' is an acquiring person because it 
will hold voting securities it did not previously hold, and ``A'' is an 
acquired person because its voting securities will be held by B. Since 
these voting securities are worth less than $50 million, however, the 
acquisition of these securities is not reportable. ``A'' will therefore 
report as an acquiring person only and ``B'' as an acquired person only.
    3. In the above example, suppose that, as consideration for Y, A 
transfers to B a manufacturing plant valued at $51 million. ``B'' is 
thus an acquiring person and ``A'' an acquired person in a reportable 
acquisition of assets. ``A'' and ``B'' will each report as both an 
acquiring and an acquired person in this transaction because each 
occupies each role in a reportable acquisition.
    4. In the above example, suppose that, as consideration for Y, A 
transfers to B a manufacturing plant valued at $16 million. ``B'' is 
thus an acquiring person and ``A'' an acquired person in a reportable 
acquisition of assets.``A'' and ``B'' will each report as both an 
acquiring and an acquired person in this transaction because each 
occupies each role in a reportable acquisition.
    5. Corporations A (the ultimate parent entity in person ``A'') and B 
(the ultimate parent entity in person ``B'') propose to consolidate into 
C, a newly formed corporation. All shareholders of A and B will receive 
shares of C, and both A and B will lose their separate pre-acquisition 
identities. ``A'' and ``B'' are both acquiring and acquired persons 
because they are parties to a transaction in which all parties lose 
their separate pre-acquisition identities.

    (e) Whenever voting securities or assets are to be acquired from an 
acquiring person in connection with an acquisition, the acquisition of 
voting securities or assets shall be separately subject to the act.

[43 FR 33537, July 31, 1978, as amended at 48 FR 34431, July 29, 1983; 
66 FR 8688, Feb. 1, 2001]



Sec.  801.3  Activities in or affecting commerce.

    Section 7A(a)(1) is satisfied if any entity included within the 
acquiring person, or any entity included within the acquired person, is 
engaged in commerce or in any activity affecting commerce.

    Examples: 1. A foreign subsidiary of a U.S. corporation seeks to 
acquire a foreign business. The acquiring person includes the U.S. 
parent corporation. If the U.S. corporation, or the foreign subsidiary, 
or any entity controlled by either one of them, is engaged in commerce 
or in any activity affecting commerce, section 7A(a)(1) is satisfied. 
Note, however, that Sec. Sec.  802.50-802.52 may exempt certain 
acquisitions of foreign businesses or assets.
    2. Even if none of the entities within the acquiring person is 
engaged in commerce or in any activity affecting commerce, the 
acquisition nevertheless satisfies section 7A(a)(1) if any entity 
included within the acquired person is so engaged.

[43 FR 33537, July 31, 1978; 43 FR 36054, Aug. 15, 1978]



Sec.  801.4  Secondary acquisitions.

    (a) Whenever as a result of an acquisition (the ``primary 
acquisition'') an acquiring person will obtain control of an issuer 
which holds voting securities of another issuer which it does not 
control, then the acquisition of the other issuer's voting securities is 
a secondary acquisition and is separately subject to the act and these 
rules.
    (b) Exemptions. (1) No secondary acquisition shall be exempt from 
the requirements of the act solely because the related primary 
acquisition is exempt from the requirements of the act.
    (2) A secondary acquisition may itself be exempt from the 
requirements of the act under section 7A(c) or these rules.

    Examples: 1. Assume that acquiring person ``A'' proposes to acquire 
all the voting securities of corporation B. This section provides that 
the acquisition of voting securities of issuers held but not controlled 
by B or by any entity which B controls are secondary acquisitions by 
``A.'' Thus, if B holds more than $50 million of the voting securities 
of corporation X (but does not control X), and ``A'' and ``X'' satisfy 
Sections 7A (a)(1) and (a)(2), ``A'' must file notification separately 
with respect to its secondary acquisition of voting securities of X. 
``X'' must file notification within fifteen days (or in the case of a 
cash tender offer, 10 days) after ``A'' files, pursuant to Sec.  801.30.
    2. If in the previous example ``A'' acquires only 50 percent of the 
voting securities of B, the result would remain the same. Since ``A'' 
would be acquiring control of B, all of B's holdings in X would be 
attributable to ``A.''
    3. In the previous examples, if ``A's'' acquisition of the voting 
securities of B is exempt, ``A'' may still be required to file 
notification

[[Page 554]]

with respect to its secondary acquisition of the voting securities of X, 
unless that acquisition is itself exempt.
    4. In the previous examples, assume A's acquisition of B is 
accomplished by merging B into A's subsidiary, S, and S is designated 
the surviving corporation. B's voting securities are cancelled, and B's 
shareholders are to receive cash in return. Since S is designated the 
surviving corporation and A will control S and also hold assets or 
voting securities it did not hold previously, ``A'' is an acquiring 
person in an acquisition of voting securities by virtue of Sec. Sec.  
801.2 (d)(1)(ii) and (d)(2)(i). A will be deemed to have acquired 
control of B, and A's resulting acquisition of the voting securities of 
X is a secondary acquisition. Since cash, the only consideration paid 
for the voting securities of B, is not considered an asset of the person 
from which it is acquired, by virtue of Sec.  801.2(d)(2) ``A'' is an 
acquiring person only. The acquisition of the minority holding of B in X 
is therefore a secondary acquisition by ``A,'' but since ``B'' is an 
acquired person only, ``B'' is not deemed to make any secondary 
acquisition in this transaction.
    5. In example 4 above, suppose the consideration paid by ``A'' for 
the acquisition of B is $60 million worth of the voting securities of 
``A.'' By virtue of Sec.  801.2(d)(2), ``A'' is both an acquiring and 
acquired person; B is an acquired person and B's shareholders are 
acquiring persons. A will still be deemed to have acquired control of B, 
and therefore the resulting acquisition of the voting securities of X is 
a secondary acquisition. Although B's shareholders are now also 
acquiring persons, unless one of them gains control of ``A'' in the 
transaction, no B shareholder makes a secondary acquisition of stock 
held by ``A.'' If the consideration paid by ``A'' is the voting 
securities of one of ``A''s subsidiaries and a shareholder of B thereby 
gains control of that subsidiary, the shareholder will make secondary 
acquisitions of any minority holdings of that subsidiary.
    6. Assume that A and B propose through consolidation to create a new 
corporation, C, and that both A and B will lose their corporate 
identities as a result. Since no participating corporation in existence 
prior to consummation is the designated surviving corporation, ``A'' and 
``B'' are each both acquiring and acquired persons by virtue of Sec.  
801.2(d)(2)(iii). The acquisition of the minority holdings of entities 
within each are therefore potential secondary acquisitions by the other.

    (c) Where the primary acquisition is--
    (1) A cash tender offer, the waiting period procedures established 
for cash tender offers pursuant to sections 7A(a) and 7A(e) of the act 
shall be applicable to both the primary acquisition and the secondary 
acquisition;
    (2) A non-cash tender offer, the waiting period procedures 
established for tender offers pursuant to section 7A(e)(2) of the act 
shall be applicable to both the primary acquisition and the secondary 
acquisition.

[43 FR 33537, July 31, 1978, as amended at 48 FR 34432, July 29, 1983; 
52 FR 7080, Mar. 6, 1987; 66 FR 8688, Feb. 1, 2001; 67 FR 11902, Mar. 
18, 2002]



Sec.  801.10  Value of voting securities and assets to be acquired.

    Except as provided in Sec.  801.13, the value of voting securities 
and assets to be acquired shall be determined as follows:
    (a) Voting securities. (1) If the security is traded on a national 
securities exchange or is authorized to be quoted in an interdealer 
quotation system of a national securities association registered with 
the U.S. Securities and Exchange Commission--
    (i) And the acquisition price has been determined, the value shall 
be the market price or the acquisition price, whichever is greater; or 
if
    (ii) The acquisition price has not been determined, the value shall 
be the market price.
    (2) If paragraph (a)(1) of this section is inapplicable--
    (i) But the acquisition price has been determined, the value shall 
be the acquisition price; or if
    (ii) The acquisition price has not been determined, the value shall 
be the fair market value.
    (b) Assets. The value of assets to be acquired shall be the fair 
market value of the assets, or, if determined and greater than the fair 
market value, the acquisition price.
    (c) For purposes of this section and Sec.  801.13(a)(2):
    (1) Market price. (i) For acquisitions subject to Sec.  801.30, the 
market price shall be the lowest closing quotation, or, in an 
interdealer quotation system, the lowest closing bid price, within the 
45 calendar days prior to the receipt of the notice required by Sec.  
803.5(a) or prior to the consummation of the acquisition.
    (ii) For acquisitions not subject to Sec.  801.30, the market price 
shall be the

[[Page 555]]

lowest closing quotation, or, in an interdealer quotation system, the 
lowest closing bid price, within the 45 or fewer calendar days which are 
prior to the consummation of the acquisition but not earlier than the 
day prior to the execution of the contract, agreement in principle or 
letter of intent to merge or acquire.
    (iii) When the security was not traded within the period specified 
by this paragraph, the last closing quotation or closing bid price 
preceding such period shall be used. If such closing quotations are 
available in more than one market, the person filing notification may 
select any such quotation.
    (2) Acquisition price. The acquisition price shall include the value 
of all consideration for such voting securities or assets to be 
acquired.
    (3) Fair market value. The fair market value shall be determinded in 
good faith by the board of directors of the ultimate parent entity 
included within the acquiring person, or, if unincorporated, by 
officials exercising similar functions; or by an entity delegated that 
function by such board or officials. Such determination must be made as 
of any day within 60 calendar days prior to the filing of the 
notification required by the act, or, if such notification has not been 
filed, within 60 calendar days prior to the consummation of the 
acquisition.

    Example: Corporation A, the ultimate parent entity in person ``A,'' 
contracts to acquire assets of corporation B, and the contract provides 
that the acquisition price is not to be determined until after the 
acquisition is effected. Under paragraph (b) of this section, for 
purposes of the act, the value of the assets is to be the fair market 
value of the assets. Under paragraph (c)(3), the board of directors of 
corporation A must in good faith determine the fair market value. That 
determination will control for 60 days whether ``A'' and ``B'' must 
observe the requirements of the act; that is, ``A'' and ``B'' must 
either file notification or consummate the acquisition within that time. 
If ``A'' and ``B'' neither file nor consummate within 60 days, the 
parties would no longer be entitled to rely on the determination of fair 
market value, and, if in doubt about whether required to observe the 
requirements of the act, would have to make a second determination of 
fair market value.

[43 FR 33537, July 31, 1978, as amended at 66 FR 8688, Feb. 1, 2001]



Sec.  801.11  Annual net sales and total assets.

    (a) The annual net sales and total assets of a person shall include 
all net sales and all assets held, whether foreign or domestic, except 
as provided in paragraphs (d) and (e) of this section.
    (b) Except for the total assets of a joint venture or other 
corporation at the time of its formation which shall be determined 
pursuant to Sec.  801.40(d) the annual net sales and total assets of a 
person shall be as stated on the financial statements specified in 
paragraph (c) of this section: Provided:
    (1) That the annual net sales and total assets of each entity 
included within such person are consolidated therein. If the annual net 
sales and total assets of any entity included within the person are not 
consolidated in such statements, the annual net sales and total assets 
of the person filing notification shall be recomputed to include the 
nonduplicative annual net sales and nonduplicative total assets of each 
such entity; and
    (2) That such statements, and any restatements pursuant to paragraph 
(b)(1) of this section (insofar as possible), have been prepared in 
accordance with the accounting principles normally used by such person, 
and are of a date not more than 15 months prior to the date of filing of 
the notification required by the act, or the date of consummation of the 
acquisition.

    Example: Person ``A'' is composed of entity A, subsidiaries B1 and 
B2 which A controls, subsidiaries C1 and C2 which B1 controls, and 
subsidiary C3 which B2 controls. Suppose that A's most recent financial 
statement consolidates the annual net sales and total assets of B1, C1, 
and C2, but not B2 or C3. In order to determine whether person ``A'' 
meets the criteria of Section 7A(a)(2)(B), as either an acquiring or an 
acquired person, A must recompute its annual net sales and total assets 
to reflect consolidation of the nonduplicative annual net sales and 
nonduplicative total assets of B2 and C3.

    (c) Subject to the provisions of paragraph (b) of this section:
    (1) The annual net sales of a person shall be as stated on the last 
regularly prepared annual statement of income and expense of that 
person; and

[[Page 556]]

    (2) The total assets of a person shall be as stated on the last 
regularly prepared balance sheet of that person.

    Example: Suppose ``A'' sells assets to ``B'' on January 1. ``A's'' 
next regularly prepared balance sheet, dated February 1, reflects that 
sale. On March 1, ``A'' proposes to sell more assets to ``B.'' ``A's'' 
total assets on March 1 are ``A's'' total assets as stated on its 
February 1 balance sheet.

    (d) No assets of any natural person or of any estate of a deceased 
natural person, other than investment assets, voting securities and 
other income-producing property, shall be included in determining the 
total assets of a person.
    (e) Subject to the limitations of paragraph (d) of this section, the 
total assets of:
    (1) An acquiring person that does not have the regularly prepared 
balance sheet described in paragraph (c)(2) of this section shall be, 
for acquisitions of each acquired person:
    (i) All assets held by the acquiring person at the time of the 
acquisition,
    (ii) Less all cash that will be used by the acquiring person as 
consideration in an acquisition of assets from, or in an acquisition of 
voting securities issued by, that acquired person (or an entity within 
that acquired person) and less all cash that will be used for expenses 
incidental to the acquisition, and less all securities of the acquired 
person (or an entity within that acquired person); and
    (2) An acquired person that does not have the regularly prepared 
balance sheet described in paragraph (c)(2) of this section shall be 
either
    (i) All assets held by the acquired person at the time of the 
acquisition, or
    (ii) Where applicable, its assets as determined in accordance with 
Sec.  801.40(d).

    Examples: For examples 1-4, assume that A is a newly-formed company 
which is not controlled by any other entity. Assume also that A has no 
sales and does not have the balance sheet described in paragraph (c)(2) 
of this section.
    1. A will borrow $105 million in cash and will purchase assets from 
B for $100 million. In order to establish whether A's acquisition of B's 
assets is reportable, A's total assets are determined by subtracting the 
$100 million that it will use to acquire B's assets from the $105 
million that A will have at the time of the acquisition. Therefore, A 
has total assets of $5 million and does not meet any size-of-person test 
of Section 7A(a)(2).
    2. Assume that A will acquire assets from B and that, at the time it 
acquires B's assets, A will have $85 million in cash and a factory 
valued at $60 million. A will exchange the factory and $80 million cash 
for B's assets. To determine A's total assets, A should subtract from 
the $85 million cash the $80 million that will be used to acquire assets 
from B and add the remainder to the value of the factory. Thus, A has 
total assets of $65 million. Even though A will use the factory as part 
of the consideration for the acquisition, the value of the factory must 
still be included in A's total assets. Note that A and B may also have 
to report the acquisition by B of A's non-cash assets (i.e., the 
factory). For that acquisition, the value of the cash A will use to buy 
B's assets is not excluded from A's total assets. Thus, in the 
acquisition by B, A's total assets are $145 million.
    3. Assume that company A will make a $150 million acquisition and 
that it must pay a loan origination fee of $5 million. A borrows $161 
million. A does not meet the size-of-person test in Section 7A(a)(2) 
because its total assets are less than $10 million. $150 million is 
excluded because it will be consideration for the acquisition and $5 
million is excluded because it is an expense incidental to the 
acquisition. Therefore, A is only a $6 million person. Note that if A 
were making an acquisition valued at over $200 million, the acquisition 
would be reportable without regard to the sizes of the persons involved.
    4. Assume that ``A'' borrows $165 million to acquire $100 million of 
assets from ``B'' and $60 million of voting securities of ``C.'' To 
determine its size for purposes of its acquisition from ``B,'' ``A'' 
subtracts the $100 million that it will use for that acquisition. 
Therefore, A has total assets of $65 million for purposes of its 
acquisition from ``B.'' To determine its size with respect to its 
acquisition from ``C,'' ``A'' subtracts the $60 million that will be 
paid for ``C's'' voting securities. Thus, for purposes of its 
acquisition from ``C'', ``A'' has total assets of $105 million. In the 
first acquisition ``A'' meets the $10 million size-of-person test and in 
the second acquisition ``A'' meets the $100 million size-of-person test 
of Section 7A(a)(2).

[43 FR 33537, July 31, 1978, as amended at 48 FR 34429, July 29, 1983; 
52 FR 7080, Mar. 6, 1987; 66 FR 8688, Feb. 1, 2001]



Sec.  801.12  Calculating percentage of voting securities.

    (a) Voting securities. Whenever the act or these rules require 
calculation of the percentage of voting securities to be held or 
acquired, the issuer whose voting securities are being acquired

[[Page 557]]

shall be deemed the ``acquired persons.''

    Example: Person ``A'' is composed of corporation A1 and subsidiary 
A2; person ``B'' is composed of corporation B1 and subsidiary B2. Assume 
that A2 proposes to sell assets to B1 in exchange for common stock of 
B2. Under this paragraph, for purposes of calculating the percentage of 
voting securities to be held, the ``acquired person'' is B2. For all 
other purposes, the acquired person is ``B.'' (For all purposes, the 
``acquiring persons'' are ``A'' and ``B.'')

    (b) Percentage of voting securities. (1) Whenever the act or these 
rules require calculation of the percentage of voting securities of an 
issuer to be held or acquired, the percentage shall be the sum of the 
separate ratios for each class of voting securities, expressed as a 
percentage. The ratio for each class of voting securities equals:
    (i)(A) The number of votes for directors of the issuer which the 
holder of a class of voting securities is presently entitled to cast, 
and as a result of the acquisition, will become entitled to cast, 
divided by,
    (B) The total number of votes for directors of the issuer which 
presently may be cast by that class, and which will be entitled to be 
cast by that class after the acquisition, multiplied by,
    (ii)(A) The number of directors that class is entitled to elect, 
divided by (B) the total number of directors.

    Examples: In each of the following examples company X has two 
classes of voting securities, class A, consisting of 1000 shares with 
each share having one vote, and class B, consisting of 100 shares with 
each share having one vote. The class A shares elect four of the ten 
directors and the class B shares elect six of the ten directors.
    In this situation, Sec.  801.12(b) requires calculations of the 
percentage of voting securities held to be made according to the 
following formula:
    Number of votes of class A held divided by Total votes of class A 
times Directors elected by class A stock divided by Total number of 
directors


Plus

    Number of votes of class B held divided by Total votes of class B 
times Directors elected by class B stock divided by Total number of 
directors

    1. Assume that company Y holds all 100 shares of class B stock and 
no shares of class A stock. By virtue of its class B holdings, Y has all 
100 of the votes which may be cast by class B stock and can elect six of 
company X's ten directors. Applying the formula which results from the 
rule, Y calculates that it holds 100/100 x 6/10 or 60 percent of the 
voting securities of company X because of its holdings of class B stock 
and no additional percentage derived from holdings of class A stock. 
Consequently, Y holds a total of 60 percent of the voting securities of 
company X.
    2. Assume that company Y holds 500 shares of class A stock and no 
shares of class B stock. By virtue of its class A holdings, Y has 500 of 
the 1000 votes which may be cast by class A to elect four of company X's 
ten directors. Applying the formula, Y calculates that it holds 500/1000 
x 4/10 or 20 percent of the voting securities of company X from its 
holdings of class A stock and no additional percentage derived from 
holdings of class B stock. Consequently, Y holds a total of 20 percent 
of the voting securities of company X.
    3. Assume that company Y holds 500 shares of class A stock and 60 
shares of class B stock. Y calculates that it holds 20 percent of the 
voting securities of company X because of its holdings of class A stock 
(see example 2). Additionally, as a result of its class B holdings Y has 
60 of the 100 votes which may be cast by class B stock to elect six of 
company X's ten directors. Applying the formula, Y calculates that it 
holds 60/100 x 6/10 or 36 percent of the voting securities of company X 
because of its holdings of class B stock. Since the formula requires 
that a person that holds different classes of voting securities of the 
same issuer add together the separate percentages calculated for each 
class, Y holds a total of 56 percent (20 percent plus 36 percent) of the 
voting securities of company X.

    (2) Authorized but unissued voting securities and treasury voting 
securities shall not be considered securities presently entitled to vote 
for directors of the issuer.
    (3) For purposes of determining the number of outstanding voting 
securities of an issuer, a person may rely upon the most recent 
information set forth in filings with the U.S. Securities and Exchange 
Commission, unless such person knows or has reason to believe that the 
information contained therein is inaccurate.

    Examples: 1. In the example to paragraph (a), to determine the 
percentage of B2's voting securities which will be held by ``A'' after 
the transaction, all voting securities of B2 held by ``A,'' the 
``acquiring person'' (including A2 and all other entities included in 
person ``A''), must be aggregated. If ``A'' holds convertible securities 
of B2 which meet

[[Page 558]]

the definition of voting securities in Sec.  801.1(f), these securities 
are to be disregarded in calculating the percentage of voting securities 
held by ``A.''
    2. Under this formula, any votes obtained by means of proxies from 
other persons are also disregarded in calculating the percentage of 
voting securities to be held or acquired.

[43 FR 33537, July 31, 1978; 43 FR 36054, Aug. 15, 1978, as amended at 
52 FR 7081, Mar. 6, 1987; 66 FR 8689, Feb. 1, 2001]



Sec.  801.13  Voting securities or assets to be held as a result of acquisition.

    (a) Voting securities. (1) Subject to the provisions of Sec.  
801.15, and paragraph (a)(3) of this section, all voting securities of 
the issuer which will be held by the acquiring person after the 
consummation of an acquisition shall be deemed voting securities held as 
a result of the acquisition. The value of such voting securities shall 
be the sum of the value of the voting securities to be acquired, 
determined in accordance with Sec.  801.10(a), and the value of the 
voting securities held by the acquiring person prior to the acquisition, 
determined in accordance with paragraph (a)(2) of this section.
    (2) The value of voting securities of an issuer held prior to an 
acquisition shall be--
    (i) If the security is traded on a national securities exchange or 
is authorized to be quoted in an interdealer quotation system of a 
national securities association registered with the United States 
Securities and Exchange Commission, the market price calculated in 
accordance with Sec.  801.10(c)(1); or
    (ii) If paragraph (a)(2)(i) of this section is not applicable, the 
fair market value determined in accordance with Sec.  801.10(c)(3).

    Examples: 1. Assume that acquiring person ``A'' holds $52 million of 
the voting securities of X, and is to acquire another $1 million of the 
same voting securities. Since under paragraph (a) of this section all 
voting securities ``A'' will hold after the acquisition are held ``as a 
result of'' the acquisition, ``A'' will hold $53 million of the voting 
securities of X as a result of the acquisition. ``A'' must therefore 
observe the requirements of the act before making the acquisition, 
unless the present acquisition is exempt under Section 7A(c), Sec.  
802.21 or any other rule.
    2. See Sec.  801.15 and the examples to that rule.
    3. See Sec.  801.20 and the examples to that rule.
    4. On January 1, company A acquired $60 million of voting securities 
of company B. ``A'' and ``B'' filed notification and observed the 
waiting period for that acquisition. Company A plans to acquire $1 
million of assets from company B on May 1 of the same year. Under Sec.  
801.13(a)(3), ``A'' and ``B'' do not aggregate the value of the earlier 
acquired voting securities to determine whether the acquisition is 
subject to the act. Therefore, the value of the acquisition is $1 
million and it is not reportable.

    (3) Voting securities held by the acquiring person prior to an 
acquisition shall not be deemed voting securities held as a result of 
that subsequent acquisition if:
    (i) The acquiring person is, in the subsequent acquisition, 
acquiring only assets; and
    (ii) The acquisition of the previously acquired voting securities 
was subject to the filing and waiting requirements of the act (and such 
requirements were observed) or was exempt pursuant to Sec.  802.21.
    (b) Assets. (1) All assets to be acquired from the acquired person 
shall be assets held as a result of the acquisition. The value of such 
assets shall be determined in accordance with Sec.  801.10(b).
    (2)(i) If the acquiring person has signed a letter of intent or 
entered into a contract or agreement in principle to acquire assets from 
the acquired person, and
    (ii) Subject to the provisions of Sec.  801.15, if the acquiring 
person has acquired from the acquired person within the 180 calendar 
days preceding the signing of such agreement any assets which are 
presently held by the acquiring person, and the acquisition of which was 
not previously subject to the requirements of the act or the acquisition 
of which was subject to the requirements of the act but they were not 
observed, then for purposes of the size-of-transaction tests of Section 
7A(a)(2) and for Sec.  801.1(h), both the acquiring and the acquired 
persons shall treat such assets as though they had not previously been 
acquired and are being acquired as part of the present acquisition. The 
value of any assets previously acquired which are subject to this 
paragraph shall be determined

[[Page 559]]

in accordance with Sec.  801.10(b) as of the time of their prior 
acquisition.

    Example: Acquiring person ``A'' proposes to make two acquisitions of 
assets from acquired person ``B,'' 90 days apart, and wishes to 
determine whether notification is necessary prior to the second 
acquisition. For purposes of the size-of-transaction tests in Section 
7A(a)(2), ``A'' must aggregate both of its acquisitions and must value 
each as of the time of its occurrence.

[43 FR 33537, July 31, 1978, as amended at 52 FR 7081, Mar. 6, 1987; 66 
FR 8689, Feb. 1, 2001]



Sec.  801.14  Aggregate total amount of voting securities and assets.

    For purposes of Section 7A(a)(2) and Sec.  801.1(h), the aggregate 
total amount of voting securities and assets shall be the sum of:
    (a) The value of all voting securities of the acquired person which 
the acquiring person would hold as a result of the acquisition, 
determined in accordance with Sec.  801.13(a); and
    (b) The value of all assets of the acquired person which the 
acquiring person would hold as a result of the acquisition, determined 
in accordance with Sec.  801.13(b).

    Examples: 1. Acquiring person ``A'' previously acquired $36 million 
of the voting securities (not convertible voting securities) of 
corporation X. ``A'' now intends to acquire $8 million of X's assets. 
Under paragraph (a) of this section, ``A'' looks to Sec.  801.13(a) and 
determines that the voting securities are to be held ``as a result of'' 
the acquisition. Section 801.13(a) also provides that ``A'' must 
determine the present value of the previously acquired securities. Under 
paragraph (b) of this section, ``A'' looks to Sec.  801.13(b)(1) and 
determines that the assets to be acquired will be held ``as a result 
of'' the acquisition, and are valued under Sec.  801.10(b) at $8 
million. Therefore, if the voting securities have a present value of 
more than $42 million, the asset acquisition is subject to the 
requirements of the act since, as a result of it, ``A'' would hold an 
aggregate total amount of the voting securities and assets of ``X'' in 
excess of $50 million.
    2. In the previous example, assume that the assets acquisition 
occurred first, and that the acquisition of the voting securities is to 
occur within 180 days of the first acquisition. ``A'' now looks to Sec.  
801.13(b)(2) and determines that the previously acquired assets are not 
treated ``as part of the present acquisition'' because the second 
acquisition is of voting securities and not assets; thus, the asset and 
voting securities acquisitions are not treated as one transaction. 
Therefore, the second acquisition would not be subject to the 
requirements of the act since the value of the securities to be acquired 
does not exceed the $50 million size-of-transaction test.

[43 FR 33537, July 31, 1978, as amended at 66 FR 8689, Feb. 1, 2001; 67 
FR 11902, Mar. 18, 2002]



Sec.  801.15  Aggregation of voting securities and assets the acquisition of which was exempt.

    Notwithstanding Sec.  801.13, for purposes of determining the 
aggregate total amount of voting securities and assets of the acquired 
person held by the acquiring person under Section 7A(a)(2) and Sec.  
801.1(h), none of the following will be held as a result of an 
acquisition:
    (a) Assets or voting securities the acquisition of which was exempt 
at the time of acquisition (or would have been exempt, had the act and 
these rules been in effect), or the present acquisition of which is 
exempt, under--
    (1) Sections 7A(c) (1), (5), (6), (7), (8), and (11)(B);
    (2) Sections 802.1, 802.2, 802.5, 802.6(b)(1), 802.8, 802.31, 
802.35, 802.52, 802.53, 802.63, and 802.70 of this chapter;
    (b) Assets or voting securities the acquisition of which was exempt 
at the time of acquisition (or would have been exempt, had the act and 
these rules been in effect), or the present acquisition of which is 
exempt, under Section 7A(c)(9) and Sec. Sec.  802.3, 802.4, 802.50(a), 
802.51(a), 802.51(b) and 802.64 of this chapter unless the limitations 
contained in Section 7A(c)(9) or those sections do not apply or as a 
result of the acquisition would be exceeded, in which case the assets or 
voting securities so acquired will be held; and
    (c) Voting securities the acquisition of which was exempt at the 
time of acquisition (or would have been exempt, had the act and these 
rules been in effect), or the present acquisition of which is exempt, 
under section 7A(c)(11)(A) unless additional voting securities of the 
same issuer have been or are being acquired.

    Examples: 1. Assume that acquiring person ``A'' is simultaneously to 
acquire $51 million of the convertible voting securities of X and $12 
million of the voting common stock of X. Since the overall value of the 
voting securities to be acquired (Sec.  801.1 defines convertible voting 
securities as ``voting securities'') is

[[Page 560]]

greater than $50 million, ``A'' must determine whether it is obliged to 
file notification and observe a waiting period before acquiring the 
securities. However, because Sec.  802.31 of this chapter is one of the 
exemptions listed in paragraph (a)(2) of this section, ``A'' would not 
hold the convertible voting securities as a result of this acquisition. 
Therefore, since as a result of the acquisition ``A'' would hold only 
the $12 million of common stock, the size-of-transaction tests of 
Section 7A(a)(2) would not be satisfied, and ``A'' need not observe the 
requirements of the act before acquiring the common stock. (Note, 
however, that the $51 million of convertible voting securities would be 
reflected in ``A'''s next regularly prepared balance sheet, for purposes 
of Sec.  801.11.)
    2. In the previous example, the rule was applied to voting 
securities the present acquisition of which is exempt. Assume instead 
that ``A'' had acquired the convertible voting securities prior to its 
acquisition of the common stock. ``A'' still would not hold the 
convertible voting securities as a result of the acquisition of the 
common stock, because the rule states that voting securities the 
previous acquisition of which was exempt also fall within the rule. 
Thus, the size-of-transaction tests of Section 7A(a)(2) would again not 
be satisfied, and ``A'' need not observe the requirements of the act 
before acquiring the common stock.
    3. In example 2, assume instead that ``A'' acquired the convertible 
voting securities in 1975, before the act and rules went into effect. 
Since the rule applies to voting securities the acquisition of which 
would have been exempt had the act and rules been in effect, the result 
again would be identical. If the rules had been in effect in 1975, the 
acquisition of the convertible voting securities would have been exempt 
under Sec.  802.31.
    4. Assume that acquiring person ``B,'' a United States person, 
acquired from corporation ``X'' two manufacturing plants located abroad, 
and assume that the acquisition price was $160 million. In the most 
recent fiscal year, sales into the United States attributable to the 
plants were $40 million, and thus the acquisition was exempt under Sec.  
802.50(a) of this chapter. Within 180 days of that acquisition, ``B'' 
seeks to acquire a third plant from ``X,'' to which United States sales 
of $12 million were attributable in the most recent fiscal year. Since 
under Sec.  801.13(b)(2), as a result of the acquisition, ``B'' would 
hold all three plants of ``X,'' and the $50 million limitation in Sec.  
802.50(a) of this chapter would be exceeded, under paragraph (b) of this 
rule, ``B'' would hold the previously acquired assets for purposes of 
the second acquisition. Therefore, as a result of the second 
acquisition, ``B'' would hold assets of ``X'' exceeding $50 million in 
sales in or into the United States, would not qualify for the exemption 
in Sec.  802.50(a) of this chapter, and must observe the requirements of 
the act and file notification for the acquisition of all three plants 
before acquiring the third plant.
    5. ``A'' acquires producing oil reserves valued at $400 million from 
``B.'' Two months later, ``A'' agrees to acquire oil and gas rights 
valued at $75 million from ``B.'' Paragraph (b) of this section and 
Sec.  801.13(b)(2) require aggregating the previously exempt acquisition 
of oil reserves with the second acquisition. If the two acquisitions, 
when aggregated, exceed the $500 million limitation on the exemption for 
oil and gas reserves in Sec.  802.3(a), ``A'' and ``B'' will be required 
to file notification for the latter acquisition, including within the 
filings the earlier acquisition. Since, in this example, the total value 
of the assets in the two acquisitions, when aggregated, is less than 
$500 million, both acquisitions are exempt from the notification 
requirements. In determining whether the value of the assets in the two 
acquisitions exceeds $500 million, ``A'' need not determine the current 
fair market value of the oil reserves acquired in the first transaction, 
since these assets are now within the person of ``A.'' Instead, ``A'' is 
directed by Sec.  801.13(b)(2)(ii) to use the value of the oil reserves 
at the time of their prior acquisition in accordance with Sec.  
801.10(b).
    6. ``X'' acquired 55 percent of the voting securities of M, an 
entity controlled by ``Z,'' six months ago and now proposes to acquire 
50 percent of the voting stock of N, another entity controlled by ``Z.'' 
M's assets consist of $150 million worth of producing coal reserves plus 
$47 million worth of non-exempt assets and N's assets consist of a 
producing coal mine worth $100 million together with non-exempt assets 
with a fair market value of $36 million. ``X's'' acquisition of the 
voting securities of M was exempt under Sec.  802.4(a) because M held 
exempt assets pursuant to Sec.  802.3(b) and less than $50 million of 
non-exempt assets. Because ``X'' acquired control of M in the earlier 
transaction, M is now within the person of ``X,'' and the assets of M 
need not be aggregated with those of N to determine if the subsequent 
acquisition of N will exceed the limitation for coal reserves or for 
non-exempt assets. Since the assets of N alone do not exceed these 
limitations, ``X's'' acquisition of N also is not reportable.
    7. In Example 6, above, assume that ``X'' acquired 30 percent of the 
voting securities of M and proposes to acquire 40 percent of the voting 
securities of N, another entity controlled by ``Z.'' Assume also that 
M's assets at the time of ``X's'' acquisition of M's voting securities 
consisted of $90 million worth of producing coal reserves and non-exempt 
assets with a fair market value of $39 million, and that N's assets 
currently consist of $60 million worth of producing coal reserves and 
non-exempt assets with a fair

[[Page 561]]

market value of $28 million. Since ``X'' acquired a minority interest in 
M and intends to acquire a minority interest in N, and since M and N are 
controlled by ``Z,'' the assets of M and N must be aggregated, pursuant 
to Sec. Sec.  801.15(b) and 801.13, to determine whether the acquisition 
of N's voting securities is exempt or whether it is reportable pursuant 
to the terms of Sec.  802.4(c) of this chapter. ``X'' is required to 
determine the current fair market value of M's assets. If the fair 
market value of M's coal reserves is unchanged, the aggregated exempt 
assets do not exceed the limitation for coal reserves under Sec.  
802.3(b) of this chapter. However, if the present fair market value of 
N's non-exempt assets also is unchanged, the present fair market value 
of the non-exempt assets of M and N when aggregated is greater than $50 
million. Thus the acquisition of the voting securities of N is not 
exempt under Sec.  802.4 of this chapter. If ``X'' proposed to acquire 
50 percent or more of the voting securities of both M and N in the same 
acquisition, the assets of M and N must be aggregated to determine if 
the acquisition of the voting securities of both issuers is exempt. 
Since the fair market value of the aggregated non-exempt assets exceeds 
$50 million, the acquisition would not be exempt.
    8. ``A'' acquired 49 percent of the voting securities of M and 45 
percent of the voting securities of N. Both M and N are controlled by 
``B.'' At the time of the acquisition, M held rights to producing coal 
reserves worth $90 million and N held a producing coal mine worth $90 
million. This acquisition was exempt since the aggregated holdings fell 
below the $200 million limitation for coal in Sec.  802.3(b) of this 
chapter. A year later, ``A'' proposes to acquire an additional 10 
percent of the voting securities of both M and N. In the intervening 
year, M has acquired coal reserves so that its holdings are now valued 
at $140 million, and the value of N's assets remained unchanged. ``A's'' 
second acquisition would not be exempt. ``A'' is required to determine 
the value of the exempt assets and any non-exempt assets held by any 
issuer whose voting securities it intends to acquire before each 
proposed acquisition (unless ``A'' already owns 50 percent or more of 
the voting securities of the issuer) to determine if the value of those 
holdings of the issuer falls below the limitation of the applicable 
exemption. Here, the holdings of M and N now exceed the $200 million 
exemption for acquisitions of coal reserves in Sec.  802.3 of this 
chapter, and thus do not qualify for the exemption of voting securities 
provided by Sec.  802.4(a) of this chapter.

[43 FR 33537, July 31, 1978, as amended at 52 FR 7081, Mar. 6, 1987; 61 
FR 13684, Mar. 28, 1996; 66 FR 8689, Feb. 1, 2001; 67 FR 11902, Mar. 18, 
2002]



Sec.  801.20  Acquisitions subsequent to exceeding threshold.

    Acquisitions meeting the criteria of section 7A(a), and not 
otherwise exempted by section 7A(c) or Sec.  802.21 or any other of 
these rules, are subject to the requirements of the act even though:
    (a) Earlier acquisitions of assets or voting securities may have 
been subject to the requirements of the act;
    (b) The acquiring person's holdings initially may have met or 
exceeded a notification threshold before the effective date of these 
rules; or
    (c) The acquiring person's holdings initially may have met or 
exceeded a notification threshold by reason of increases in market 
values or events other than acquisitions.

    Examples: 1. Person ``A'' acquires $10 million of the voting 
securities of person ``B'' before the effective date of these rules. If 
``A'' wishes to acquire an additional $41 million of the voting 
securities of ``B'' after the effective date of the rules, notification 
will be required by reason of Section 7A(a)(2).
    2. In example 1, assume that the value of the voting securities of 
``B'' originally acquired by ``A'' has reached a present value exceeding 
$50 million. If ``A'' wishes to acquire any additional voting securities 
or assets of ``B,'' notification will be required. See Sec.  801.13(a).

[43 FR 33537, July 31, 1978, as amended at 66 FR 8690, Feb. 1, 2001]



Sec.  801.21  Securities and cash not considered assets when acquired.

    For purposes of determining the aggregate total amount of assets 
under Section 7A(a)(2) and Sec.  801.13(b):
    (a) Cash shall not be considered an asset of the person from which 
it is acquired; and
    (b) Neither voting or nonvoting securities nor obligations referred 
to in section 7A(c)(2) shall be considered assets of another person from 
which they are acquired.

    Examples: 1. Assume that acquiring person ``A'' acquires voting 
securities of issuer X from ``B,'' a person unrelated to X. Under this 
paragraph, the acquisition is treated only as one of voting securities, 
requiring ``A'' and ``X'' to comply with the requirements of the act, 
rather than one in which ``A'' acquires the assets of ``B,'' requiring 
``A'' and ``B'' to comply. See also example 2 to Sec.  801.30. Note that 
for purposes of section

[[Page 562]]

7A(a)(2)--that is, for the next regularly prepared balance sheet of 
``A'' referred to in Sec.  801.11--the voting securities of X must be 
reflected after their acquisition; see Sec.  801.11(c)(2).
    2. In the previous example, if ``A'' acquires nonvoting securities 
of X from ``B,'' then under this section the acquisition would be 
treated only as one of nonvoting securities of X (and would be exempt 
under section 7A(c)(2)), rather than one in which ``A'' acquires assets 
of ``B,'' requiring ``A'' and ``B'' to comply. Again, the nonvoting 
securities of X would have to be reflected in ``A's'' next regularly 
prepared balance sheet for purposes of section 7A(a)(2).
    3. In example 1, assume that ``B'' receives only cash from ``A'' in 
exchange for the voting securities of X. Under this section, ``B's'' 
acquisition of cash is not an acquisition of the ``assets'' of ``A,'' 
and ``B'' is not required to file notification as an acquiring person.

[43 FR 33537, July 31, 1978, as amended at 66 FR 8690, Feb. 1, 2001; 68 
FR 2430, Jan. 17, 2003]



Sec.  801.30  Tender offers and acquisitions of voting securities from third parties.

    (a) This section applies to:
    (1) Acquisitions on a national securities exchange or through an 
interdealer quotation system registered with the United States 
Securities and Exchange Commission;
    (2) Acquisitions described by Sec.  801.31;
    (3) Tender offers;
    (4) Secondary acquisitions;
    (5) All acquisitions (other than mergers and consolidations) in 
which voting securities are to be acquired from a holder or holders 
other than the issuer or an entity included within the same person as 
the issuer;
    (6) Conversions; and
    (7) Acquisitions of voting securities resulting from the exercise of 
options or warrants which are--
    (i) Issued by the issuer whose voting securities are to be acquired 
(or by any entity included within the same person as the issuer); and
    (ii) The subject of a currently effective registration statement 
filed with the United States Securities and Exchange Commission under 
the Securities Act of 1933.
    (b) For acquisitions described by paragraph (a) of this section:
    (1) The waiting period required under the act shall commence upon 
the filing of notification by the acquiring person as provided in Sec.  
803.10(a); and
    (2) The acquired person shall file the notification required by the 
act, in accordance with these rules, no later than 5 p.m. Eastern Time 
on the 15th (or, in the case of cash tender offers, the 10th) calendar 
day following the date of receipt, as defined by Sec.  803.10(a), by the 
Federal Trade Commission and Assistant Attorney General of the 
notification filed by the acquiring person. Should the 15th (or, in the 
case of cash tender offers, the 10th) calendar day fall on a weekend day 
or federal holiday, the notification shall be filed no later than 5 p.m. 
Eastern Time on the next following business day.

    Examples: 1. Acquiring person ``A'' proposes to acquire from 
corporation B the voting securities of B's wholly owned subsidiary, 
corporation S. Since ``A'' is acquiring the shares of S from its parent, 
this section does not apply, and the waiting period does not begin until 
both ``A'' and ``B'' file notification.
    2. Acquiring person ``A'' proposes to acquire $60 million of the 
voting securities of corporation X on a securities exchange. The waiting 
period begins when ``A'' files notification. ``X'' must file 
notification within 15 calendar days thereafter. The seller of the X 
shares is not subject to any obligations under the act.
    3. Suppose that acquiring person ``A'' proposes to acquire 50 
percent of the voting securities of corporation B which in turn owns 30 
percent of the voting securities of corporation C. Thus ``A's'' 
acquisition of C's voting securities is a secondary acquisition (see 
Sec.  801.4) to which this section applies because ``A'' is acquiring 
C's voting securities from a third party (B). Therefore, the waiting 
period with respect to ``A's'' acquisition of C's voting securities 
begins when ``A'' files its separate Notification and Report Form with 
respect to C, and ``C'' must file within 15 days (or in the case of a 
cash tender offer, 10 days) thereafter. ``A's'' primary and secondary 
acquisitions of the voting securities of B and C are subject to separate 
waiting periods; see Sec.  801.4.

[43 FR 33537, July 31, 1978; 43 FR 36054, Aug. 15, 1978, as amended at 
52 FR 7082, Mar. 6, 1987; 66 FR 8690, Feb. 1, 2001]



Sec.  801.31  Acquisitions of voting securities by offerees in tender offers.

    Whenever an offeree in a noncash tender offer is required to, and 
does, file notification with respect to an acquisition described in 
Sec.  801.2(e):

[[Page 563]]

    (a) The waiting period with respect to such acquisition shall begin 
upon filing of notification by the offeree, pursuant to Sec. Sec.  
801.30 and 803.10(a)(1);
    (b) The person within which the issuer of the shares to be acquired 
by the offeree is included shall file notification as required by Sec.  
801.30(b);
    (c) Any request for additional information or documentary material 
pursuant to section 7A(e) and Sec.  803.20 shall extend the waiting 
period in accordance with Sec.  803.20(c); and
    (d) The voting securities to be acquired by the offeree may be 
placed into escrow, for the benefit of the offeree, pending expiration 
or termination of the waiting period with respect to the acquisition of 
such securities; Provided however, That no person may vote any voting 
securities placed into escrow pursuant to this paragraph.

    Example: Assume that ``A,'' which has annual net sales exceeding 
$100 million, makes a tender offer for voting securities of corporation 
X. The consideration for the tender offer is to be voting securities of 
A. ``S,'' a shareholder of X with total assets exceeding $10 million, 
wishes to tender its holdings of X and in exchange would receive shares 
of A valued at $56 million. Under this section, ``S's'' acquisition of 
the shares of A would be an acquisition separately subject to the 
requirements of the act. Before ``S'' may acquire the voting securities 
of A, ``S'' must first file notification and observe a waiting period--
which is separate from any waiting period that may apply with respect to 
``A'' and ``X.'' Since Sec.  801.30 applies, the waiting period 
applicable to ``A'' and ``S'' begins upon filing by ``S,'' and ``A'' 
must file with respect to ``S's'' acquisition within 15 days pursuant to 
Sec.  801.30(b). Should the waiting period with respect to ``A'' and 
``X'' expire or be terminated prior to the waiting period with respect 
to ``S'' and ``A,'' ``S'' may wish to tender its X-shares and place the 
A-shares into a nonvoting escrow until the expiration or termination of 
the latter waiting period.

[43 FR 33537, July 31, 1978, as amended at 66 FR 8690, Feb. 1, 2001]



Sec.  801.32  Conversion and acquisition.

    A conversion is an acquisition within the meaning of the act.

    Example: Assume that acquiring person ``A'' wishes to convert 
convertible voting securities of issuer X, and is to receive common 
stock of X valued at $80 million. If ``A'' and ``X'' satisfy the 
criteria of Section 7A(a)(1) and Section 7A(a)(2)(B)(ii), then ``A'' and 
``X'' must file notification and observe the waiting period before ``A'' 
completes the acquisition of the X common stock, unless exempted by 
Section 7A(c) or these rules. Since Sec.  801.30 applies, the waiting 
period begins upon notification by ``A,'' and ``X'' must file 
notification within 15 days.

[43 FR 33537, July 31, 1978, as amended at 66 FR 8690, Feb. 1, 2001]



Sec.  801.33  Consummation of an acquisition by acceptance of tendered shares of payment.

    The acceptance for payment of any shares tendered in a tender offer 
is the consummation of an acquisition of those shares within the meaning 
of the act.

[48 FR 34433, July 29, 1983]



Sec.  801.40  Formation of joint venture or other corporations.

    (a) In the formation of a joint venture or other corporation (other 
than in connection with a merger or consolidation), even though the 
persons contributing to the formation of a joint venture or other 
corporation and the joint venture or other corporation itself may, in 
the formation transaction, be both acquiring and acquired persons within 
the meaning of Sec.  801.2, the contributors shall be deemed acquiring 
persons only, and the joint venture or other corporation shall be deemed 
the acquired person only.
    (b) Unless exempted by the act or any of these rules, upon the 
formation of a joint venture or other corporation, in a transaction 
meeting the criteria of Section 7A(a)(1) and 7A(a)(2)(A) (other than in 
connection with a merger or consolidation), an acquiring person shall be 
subject to the requirements of the act.
    (c) Unless exempted by the act or any of these rules, upon the 
formation of a joint venture or other corporation, in a transaction 
meeting the criteria of Section 7A(a)(1) and the criteria of Section 
7A(a)(2)(B)(i) (other than in connection with a merger or 
consolidation), an acquiring person shall be subject to the requirements 
of the act if:
    (1)(i) The acquiring person has annual net sales or total assets of 
$100 million or more;
    (ii) The joint venture or other corporation will have total assets 
of $10 million or more; and

[[Page 564]]

    (iii) At least one other acquiring person has annual net sales or 
total assets of $10 million or more; or
    (2)(i) The acquiring person has annual net sales or total assets of 
$10 million or more;
    (ii) The joint venture or other corporation will have total assets 
of $100 million or more; and
    (iii) At least one other acquiring person has annual net sales or 
total assets of $10 million or more.
    (d) For purposes of paragraphs (b) and (c) of this section and 
determining whether any exemptions provided by the act and these rules 
apply to its formation, the assets of the joint venture or other 
corporation shall include:
    (1) All assets which any person contributing to the formation of the 
joint venture or other corporation has agreed to transfer or for which 
agreements have been secured for the joint venture or other corporation 
to obtain at any time, whether or not such person is subject to the 
requirements of the act; and
    (2) Any amount of credit or any obligations of the joint venture or 
other corporation which any person contributing to the formation has 
agreed to extend or guarantee, at any time.
    (e) The commerce criterion of Section 7A(a)(1) is satisfied if 
either the activities of any acquiring person are in or affect commerce, 
or the person filing notification should reasonably believe that the 
activities of the joint venture or other corporation will be in or will 
affect commerce.

    Examples: 1. Persons ``A,'' ``B,'' and ``C'' agree to create new 
corporation ``N,'' a joint venture. ``A,'' ``B,'' and ``C'' will each 
hold one third of the shares of ``N.'' ``A'' has more than $100 million 
in annual net sales. ``B'' has more than $10 million in total assets but 
less than $100 million in annual net sales and total assets. Both ``C''s 
total assets and its annual net sales are less than $10 million. ``A,'' 
``B,'' and ``C'' are each engaged in commerce. ``A,'' ``B,'' and ``C'' 
have agreed to make an aggregate initial contribution to the new entity 
of $18 million in assets and each to make additional contributions of 
$21 million in each of the next three years. Under paragraph (d), the 
assets of the new corporation are $207 million. Under paragraph (c), 
``A'' and ``B'' must file notification. Note that ``A'' and ``B'' also 
meet the criterion of Section 7A(a)(2)(B)(i) since they will be 
acquiring one third of the voting securities of the new entity for $69 
million. N need not file notification; see Sec.  802.41.
    2. In the preceding example ``A'' has over $10 million but less than 
$100 million in sales and assets, ``B'' and ``C'' have less than $10 
million in sales and assets. ``N'' has total assets of $500 million. 
Assume that ``A'' will acquire 50 percent of the voting securities of 
``N'' and ``B'' and ``C'' will each acquire 25 percent. Since ``A'' will 
acquire in excess of $200 million in voting securities of ``N'', the 
size-of-person test in Sec.  801.40(c) is inapplicable and ``A'' is 
required to file notification.

[43 FR 33537, July 31, 1978, as amended at 48 FR 34434, July 29, 1983; 
52 FR 7082, Mar. 6, 1987; 66 FR 8690, Feb. 1, 2001]



Sec.  801.90  Transactions or devices for avoidance.

    Any transaction(s) or other device(s) entered into or employed for 
the purpose of avoiding the obligation to comply with the requirements 
of the act shall be disregarded, and the obligation to comply shall be 
determined by applying the act and these rules to the substance of the 
transaction.

    Examples: 1. Suppose corporations ``A'' and ``B'' wish to form a 
joint venture. ``A'' and ``B'' contemplate a total investment of over 
$100 million in the joint venture; persons ``A'' and ``B'' each has 
total assets in excess of $100 million. Instead of filing notification 
pursuant to Sec.  801.40, ``A'' creates a new subsidiary, A1, which 
issues half of its authorized shares to ``A.'' Assume that A1 has total 
assets of $3000. ``A'' then sells 50 percent of its A1 stock to ``B'' 
for $1500. Thereafter, ``A'' and ``B'' each contribute $53 million to A1 
in exchange for the remaining authorized A1 stock (one-fourth each to 
``A'' and ``B''). ``A'''s creation of A1 was exempt under Sec.  802.30 
of this chapter; its $1500 sale of A1 stock to ``B'' did not meet the 
size-of-transaction filing threshold in Section 7A(a)(2)(B); and the 
second acquisitions of stock in A1 by ``A'' and ``B'' were exempt under 
Sections 7A(c)(3) and (10), because ``A'' and ``B'' each already 
controlled A1, based on their holdings of 50 percent of A1's then-
outstanding shares. Since this scheme appears to be for the purpose of 
avoiding the requirements of the act, the sequence of transactions will 
be disregarded. The transactions will be viewed as the formation of a 
joint venture corporation by ``A'' and ``B'' having over $10 million in 
assets. Such a transaction would be covered by Sec.  801.40, and ``A'' 
and ``B'' must file notification and observe the waiting period.
    2. Suppose ``A'' wholly owns and operates a chain of twenty retail 
hardware stores, each of which is separately incorporated and has assets 
of less than $10 million. The aggregate fair market value of the assets 
of the twenty

[[Page 565]]

store corporations is $60 million. ``A'' proposes to sell the stores to 
``B'' for $60 million. For various reasons it is decided that ``B'' will 
buy the stock of each of the store corporations from ``A.'' Instead of 
filing notification and observing the waiting period as contemplated by 
the act, ``A'' and ``B'' enter into a series of five stock purchase-sale 
agreements for $12 million each. Under the terms of each contract, the 
stock of four stores will pass from ``A'' to ``B''. The five agreements 
are to be consummated on five successive days. Because after each of 
these transactions the store corporations are no longer part of the 
acquired person (Sec.  801.13(a) does not apply because control has 
passed, see Sec.  801.2), and because $12 million is below the size-of-
transaction filing threshold of Section 7A(a)(2)(B), none of the 
contemplated acquisitions would be subject to the requirements of the 
act. However, if the stock of all of the store corporations were to be 
purchased in one transaction, no exemption would be applicable, and the 
act's requirements would have to be met. Because it appears that the 
purpose of making five separate contracts is to avoid the requirements 
of the act, this section would ignore the form of the separate 
transactions and consider the substance to be one transaction requiring 
compliance with the act.

[43 FR 33537, July 31, 1978, as amended at 66 FR 8691, Feb. 1, 2001; 67 
FR 11903, Mar. 18, 2002]



PART 802_EXEMPTION RULES--Table of Contents




Sec.
802.1 Acquisitions of goods and realty in the ordinary course of 
          business.
802.2 Certain acquisitions of real property assets.
802.3 Acquisitions of carbon-based mineral reserves.
802.4 Acquisitions of voting securities of issuers holding certain 
          assets the direct acquisition of which is exempt.
802.5 Acquisitions of investment rental property assets.
802.6 Federal agency approval.
802.8 Certain supervisory acquisitions.
802.9 Acquisition solely for the purpose of investment.
802.10 Stock dividends and splits.
802.20 [Reserved]
802.21 Acquisitions of voting securities not meeting or exceeding 
          greater notification threshold.
802.23 Amended or renewed tender offers.
802.30 Intraperson transactions.
802.31 Acquisitions of convertible voting securities.
802.35 Acquisitions by employee trusts.
802.40 Exempt formation of joint venture or other corporations.
802.41 Joint venture or other corporations at time of formation.
802.42 Partial exemption for acquisitions in connection with the 
          formation of certain joint ventures or other corporations.
802.50 Acquisitions of foreign assets.
802.51 Acquisitions of voting securities of a foreign issuer.
802.52 Acquisitions by or from foreign governmental corporations.
802.53 Certain foreign banking transactions.
802.60 Acquisitions by securities underwriters.
802.63 Certain acquisitions by creditors and insurers.
802.64 Acquisitions of voting securities by certain institutional 
          investors.
802.70 Acquisitions subject to order.
802.71 Acquisitions by gift, intestate succession or devise, or by 
          irrevocable trust.

    Authority: 15 U.S.C. 18a(d).

    Source: 43 FR 33544, July 31, 1978, unless otherwise noted.



Sec.  802.1  Acquisitions of goods and realty in the ordinary course of business.

    Pursuant to section 7A(c)(1), acquisitions of goods and realty 
transferred in the ordinary course of business are exempt from the 
notification requirements of the act. This section identifies certain 
acquisitions of goods that are exempt as transfers in the ordinary 
course of business. This section also identifies certain acquisitions of 
goods and realty that are not in the ordinary course of business and, 
therefore, do not qualify for the exemption.
    (a) Operating unit. An acquisition of all or substantially all the 
assets of an operating unit is not an acquisition in the ordinary course 
of business. Operating unit means assets that are operated by the 
acquired person as a business undertaking in a particular location or 
for particular products or services, even though those assets may not be 
organized as a separate legal entity.
    (b) New goods. An acquisition of new goods is in the ordinary course 
of business, except when the goods are acquired as part of an 
acquisition described in paragraph (a) of this section.
    (c) Current supplies. An acquisition of current supplies is in the 
ordinary course of business, except when acquired as part of an 
acquisition described in paragraph (a) of this section. The term 
``current supplies'' includes

[[Page 566]]

the following kinds of new or used assets:
    (1) Goods acquired and held solely for the purpose of resale or 
leasing to an entity not within the acquiring person (e.g., inventory),
    (2) Goods acquired for consumption in the acquiring person's 
business (e.g., office supplies, maintenance supplies or electricity), 
and
    (3) Goods acquired to be incorporated in the final product (e.g., 
raw materials and components).
    (d) Used durable goods. A good is ``durable'' if it is designed to 
be used repeatedly and has a useful life greater than one year. An 
acquisition of used durable goods is an acquisition in the ordinary 
course of business if the goods are not acquired as part of an 
acquisition described in paragraph (a) of this section and any of the 
following criteria are met:
    (1) The goods are acquired and held solely for the purpose of resale 
or leasing to an entity not within the acquiring person; or
    (2) The goods are acquired from an acquired person who acquired and 
has held the goods solely for resale or leasing to an entity not within 
the acquired person; or
    (3) The acquired person has replaced, by acquisition or lease, all 
or substantially all of the productive capacity of the goods being sold 
within six months of that sale, or the acquired person has in good faith 
executed a contract to replace within six months after the sale, by 
acquisition or lease, all or substantially all of the productive 
capacity of the goods being sold; or
    (4) The goods have been used by the acquired person solely to 
provide management and administrative support services for its business 
operations, and the acquired person has in good faith executed a 
contract to obtain substantially similar services as were provided by 
the goods being sold. Management and administrative support services 
include services such as accounting, legal, purchasing, payroll, billing 
and repair and maintenance of the acquired person's own equipment. 
Manufacturing, research and development, testing and distribution (i.e., 
warehousing and transportation) are not considered management and 
administrative support services.

    Examples: 1. Greengrocer Inc. intends to sell to ``A'' all of the 
assets of one of the 12 grocery stores that it owns and operates 
throughout the metropolitan area of City X. Each of Greengrocer's stores 
constitutes an operating unit, i.e., a business undertaking in a 
particular location. Thus ``A's'' acquisition is not exempt as an 
acquisition in the ordinary course of business. However, the acquisition 
will not be subject to the notification requirements if the acquisition 
price or fair market value of the store's assets does not exceed $50 
million.
    2. ``A,'' a manufacturer of airplane engines, agrees to pay $52 
million to ``B,'' a manufacturer of airplane parts, for certain new 
engine components to be used in the manufacture of airplane engines. The 
acquisition is exempt under Sec.  802.1(b) as new goods as well as under 
Sec.  802.1(c)(3) as current supplies.
    3. ``A,'' a power generation company, proposes to purchase from 
``B,'' a coal company, $75 million of coal under a long-term contract 
for use in its facilities to supply electric power to a regional public 
utility and steam to several industrial sites. This transaction is 
exempt under Sec.  802.1(c)(2) as an acquisition of current supplies. 
However, if ``A'' proposed to purchase coal reserves rather than enter 
into a contract to acquire output of a coal mine, the acquisition would 
not be exempt as an acquisition of goods in the ordinary course of 
business. The acquisition may still be exempt pursuant to Sec.  802.3(b) 
as an acquisition of reserves of coal if the requirements of that 
section are met.
    4. ``A,'' a national producer of canned fruit, preserves, jams and 
jellies, agrees to purchase from ``B'' for $60 million a total of 20,000 
acres of orchards and vineyards in several locations throughout the U.S. 
``A'' plans to harvest the fruit from the acreage for use in its canning 
operations. The acquisition is not exempt under Sec.  802.1 because 
orchards and vineyards are real property, not ``goods.'' If, on the 
other hand, ``A'' had contracted to acquire from ``B'' the fruit and 
grapes harvested from the orchards and vineyards, the acquisition would 
qualify for the exemption as an acquisition of current supplies under 
Sec.  802.1(c)(3). Although the transfer of orchards and vineyards is 
not exempt under Sec.  802.1, the acquisition would be exempt under 
Sec.  802.2(g) as an acquisition of agricultural property.
    5. ``A,'' a railcar leasing company, will purchase $55 million of 
new railcars from a railcar manufacturer in order to expand its existing 
fleet of cars available for lease. The transaction is exempt under Sec.  
802.1(b) as an acquisition of new goods and Sec.  802.1(c), as an 
acquisition of current supplies. If ``A'' subsequently sells the 
railcars to ``C,'' a commercial railroad company, that acquisition

[[Page 567]]

would be exempt under Sec.  802.1(d)(2), provided that ``A'' acquired 
and held the railcars solely for resale or leasing to an entity not 
within itself.
    6. ``A,'' a major oil company, proposes to sell two of its used oil 
tankers for $75 million to ``B,'' a dealer who purchases oil tankers 
from the major U.S. oil companies. ``B's'' acquisition of the used oil 
tankers is exempt under Sec.  802.1(d)(1) provided that ``B'' is 
actually acquiring beneficial ownership of the used tankers and is not 
acting as an agent of the seller or purchaser.
    7. ``A,'' a cruise ship operator, plans to sell for $58 million one 
of its cruise ships to ``B,'' another cruise ship operator. ``A'' has, 
in good faith, executed a contract to acquire a new cruise ship with 
substantially the same capacity from a manufacturer. The contract 
specifies that ``A'' will receive the new cruise ship within one month 
after the scheduled date of the sale of its used cruise ship to ``B.'' 
Since ``B'' is acquiring a used durable good that ``A'' has contracted 
to replace within six months of the sale, the acquisition is exempt 
under Sec.  802.1(d)(3).
    8. ``A,'' a luxury cruise ship operator, proposes to sell to ``B,'' 
a credit company engaged in the ordinary course of its business in lease 
financing transactions, its fleet of six passenger ships under a 10-year 
sale/leaseback arrangement. That acquisition is exempt pursuant to Sec.  
802.1(d)(1), used durable goods acquired for leasing purposes. The 
acquisition is also exempt under Sec.  802.63(a) as a bona fide credit 
transaction entered into in the ordinary course of ``B's'' business. 
``B'' now proposes to sell the ships, subject to the current lease 
financing arrangement, to ``C,'' another lease financing company. This 
transaction is exempt under Sec. Sec.  802.1(d)(1) and 802.1(d)(2).
    9. Three months ago ``A,'' a manufacturing company, acquired several 
new machines that will replace equipment on one of its production lines. 
``A's'' capacity to produce the same products increased modestly when 
the integration of the new equipment was completed. ``B,'' a 
manufacturing company that produces products similar to those produced 
by ``A,'' has entered into a contract to acquire for $66 million the 
machinery that ``A'' replaced. Delivery of the equipment by ``A'' to 
``B'' is scheduled to occur within thirty days. Since ``A'' purchased 
new machinery to replace the productive capacity of the used equipment, 
which it sold within six months of the purchase of the new equipment, 
the acquisition by ``B'' is exempt under Sec.  802.1(d)(3).
    10. ``A'' will sell to ``B'' for $56 million all of the equipment 
``A'' uses exclusively to perform its billing requirements. ``B'' will 
use the equipment to provide ``A's'' billing needs pursuant to a 
contract which ``A'' and ``B'' executed 30 days ago in conjunction with 
the equipment purchase agreement. Although the assets ``B'' will acquire 
make up essentially all of the assets of one of ``A's'' management and 
administrative support services divisions, the acquisition qualifies for 
the exemption under Sec.  802.1(d)(4) because a company's internal 
management and administrative support services, however organized, are 
not an operating unit as defined by Sec. 802.1(a). Management and 
administrative support services are not a ``business undertaking'' as 
that term is used in Sec. 802.1(a). Rather, they provide support and 
benefit to the company's operating units and support the company's 
business operations. However, if the assets being sold also derived 
revenues from providing billing services for third parties, then the 
transfer of these assets would not be exempt under Sec. 802.1(d)(4), 
since the equipment is not being used solely to provide management and 
administrative support services to ``A''.
    11. ``A,'' a manufacturer of pharmaceutical products, and ``B'' have 
entered into a contract under which ``B'' will provide all of ``A's'' 
research and development needs. Pursuant to the contract, ``B'' will 
also purchase all of the equipment that ``A'' formerly used to perform 
its own research and development activities. The sale of the equipment 
is not an exempt transaction under Sec.  802.1(d)(3) because ``A'' is 
not replacing the productive capacity of the equipment being sold. The 
sale is also not exempt under Sec.  802.1(d)(4), because functions such 
as research and development and testing are not management and 
administrative support services of a company but are integral to the 
design, development or production of the company's products.
    12. ``A,'' an automobile manufacturer, is discontinuing its 
manufacture of metal seat frames for its cars. ``A'' enters into a 
contract with ``B,'' a manufacturer of various fabricated metal 
products, to sell its seat frame production lines and to purchase from 
``B'' all of its metal seat frame needs for the next five years. This 
transfer of productive capacity by ``A'' is not exempt pursuant to Sec.  
802.1(d)(3), since ``A'' is not replacing the productive capacity of the 
equipment being sold. The acquisition is also not exempt under Sec.  
802.1(d)(4). ``A's'' sale of production lines is not the transfer of 
goods that provide management and administrative services to support the 
business operations of''A''; this manufacturing equipment is an integral 
part of ``A's'' production operations.

[61 FR 13684, Mar. 28, 1996, as amended at 66 FR 8691, Feb. 1, 2001]



Sec.  802.2  Certain acquisitions of real property assets.

    (a) New facilities. An acquisition of a new facility shall be exempt 
from the requirements of the act. A new facility

[[Page 568]]

is a structure that has not produced income and was either constructed 
by the acquired person for sale or held at all times by the acquired 
person solely for resale. The new facility may include realty, equipment 
or other assets incidental to the ownership of the new facility. In an 
acquisition that includes a new facility, the transfer of any other 
assets shall be subject to the requirements of the act and these rules 
as if they were being acquired in a separate acquisition.
    (b) Used facilities. An acquisition of a used facility shall be 
exempt from the requirements of the act if the facility is acquired from 
a lessor that has held title to the facility for financing purposes in 
the ordinary course of the lessor's business by a lessee that has had 
sole and continuous possession and use of the facility since it was 
first built as a new facility. The used facility may include realty, 
equipment or other assets associated with the operation of the facility. 
In an acquisition that includes a used facility that meets the 
requirements of this paragraph, the transfer of any other assets shall 
be subject to the requirements of the act and these rules as if they 
were acquired in a separate transaction.
    (c) Unproductive real property. An acquisition of unproductive real 
property shall be exempt from the requirements of the act. In an 
acquisition that includes unproductive real property, the transfer of 
any assets that are not unproductive real property shall be subject to 
the requirements of the act and these rules as if they were being 
acquired in a separate acquisition.
    (1) Subject to the limitations of (c)(2), unproductive real property 
is any real property, including raw land, structures or other 
improvements (but excluding equipment), associated production and 
exploration assets as defined in Sec.  802.3(c), natural resources and 
assets incidental to the ownership of the real property, that has not 
generated total revenues in excess of $5 million during the thirty-six 
(36) months preceding the acquisition.
    (2) Unproductive real property does not include the following:
    (i) Manufacturing or non-manufacturing facilities that have not yet 
begun operation;
    (ii) Manufacturing or non-manufacturing facilities that were in 
operation at any time during the twelve (12) months preceding the 
acquisition; and
    (iii) Real property that is either adjacent to or used in 
conjunction with real property that is not unproductive real property 
and is included in the acquisition.
    (d) Office and residential property. (1) An acquisition of office or 
residential property shall be exempt from the requirements of the act. 
In an acquisition that includes office or residential property, the 
transfer of any assets that are not office or residential property shall 
be subject to the requirements of the act and these rules as if such 
assets were being transferred in a separate acquisition.
    (2) Office and residential property is real property that is used 
primarily for office or residential purposes. In determining whether 
real property is used primarily for office or residential purposes, all 
real property, the acquisition of which is exempt under another 
provision of the act and these rules, shall be excluded from the 
determination. Office and residential property includes:
    (i) Office buildings,
    (ii) Residences,
    (iii) Common areas on the property, including parking and 
recreational facilities, and
    (iv) Assets incidental to the ownership of such property, including 
cash, prepaid taxes or insurance, rental receivables and the like.
    (3) If the acquisition includes the purchase of a business conducted 
on the office and residential property, the transfer of that business, 
including the space in which the business is conducted, shall be subject 
to the requirements of the act and these rules as if such business were 
being transferred in a separate acquisition.
    (e) Hotels and motels. (1) An acquisition of a hotel or motel, its 
improvements such as golf, swimming, tennis, restaurant, health club or 
parking facilities (but excluding ski facilities), and assets incidental 
to the ownership and operation of the hotel or motel (e.g., prepaid 
taxes or insurance, management contracts and licenses to use trademarks 
associated with the hotel

[[Page 569]]

or motel being acquired) shall be exempt from the requirements of the 
act. In an acquisition that includes a hotel or motel, the transfer of 
any assets that are not a hotel or motel, its improvements such as golf, 
swimming, tennis, restaurant, health club or parking facilities (but 
excluding ski facilities) and assets incidental to the ownership of the 
hotel or motel, shall be subject to the requirements of the act and 
these rules as if they were being acquired in a separate acquisition.
    (2) Notwithstanding paragraph (1) of the section, an acquisition of 
a hotel or motel that includes a gambling casino shall be subject to the 
requirements of the act and these rules.
    (f) Recreational land. An acquisition of recreational land shall be 
exempt from the requirements of the act. Recreational land is real 
property used primarily as a golf course or a swimming or tennis club 
facility, and assets incidental to the ownership of such property. In an 
acquisition that includes recreational land, the transfer of any 
property or assets that are not recreational land shall be subject to 
the requirements of the act and these rules as if they were being 
acquired in a separate acquisition.
    (g) Agricultural property. An acquisition of agricultural property 
and assets incidental to the ownership of such property shall be exempt 
from the requirements of the act. Agricultural property is real property 
that primarily generates revenues from the production of crops, fruits, 
vegetables, livestock, poultry, milk and eggs (activities within NAICS 
sector 11).
    (1) Agricultural property does not include either:
    (i) Processing facilities such as poultry and livestock 
slaughtering, processing and packing facilities; or
    (ii) Any real property and assets either adjacent to or used in 
conjunction with processing facilities that are included in the 
acquisition.
    (2) In an acquisition that includes agricultural property, the 
transfer of any assets that are not agricultural property or assets 
incidental to the ownership of such property (cash, prepaid taxes or 
insurance, rentals receivable and the like) shall be subject to the 
requirements of the act and these rules as if such assets were being 
transferred in a separate acquisition.
    (h) Retail rental space; warehouses. An acquisition of retail rental 
space (including shopping centers) or warehouses and assets incidental 
to the ownership of retail rental space or warehouses shall be exempt 
from the requirements of the act, except when the retail rental space or 
warehouse is to be acquired in an acquisition of a business conducted on 
the real property. In an acquisition that includes retail rental space 
or warehouses, the transfer of any assets that are neither retail rental 
space nor warehouses shall be subject to the requirements of the act and 
these rules as if such assets were being transferred in a separate 
acquisition.

    Examples. 1. ``A,'' a major automobile manufacturer, builds a new 
automobile plant in anticipation of increased demand for its cars. The 
market does not improve and ``A'' never occupies the facility. ``A'' 
then sells the facility, which is fully equipped and ready for 
operation, to ``B,'' another automobile manufacturer. The acquisition of 
this plant, including any equipment and assets associated with its 
operation, is not exempt as an acquisition of a new facility, even 
though the facility has not produced any income, since ``A'' did not 
construct the facility for sale or hold it at all times solely for 
resale. Also, the acquisition is not exempt as an acquisition of 
unproductive property, because manufacturing facilities that have not 
yet begun operations are explicitly excluded from that exemption.
    2. B, a subsidiary of ``A,'' a financial institution, acquired a 
newly constructed power plant, which it leased to ``X'' pursuant to a 
lease financing arrangement. ``A's'' acquisition of the plant through B 
was exempt under Sec.  802.63(a) as a bona fide credit transaction 
entered into in the ordinary course of ``A's'' business. ``X'' operated 
the plant as sole lessee for the next eight years and now proposes to 
exercise an option to buy the plant for $62 million. ``X's'' acquisition 
of the plant is exempt pursuant to Sec.  802.2(b). The plant is being 
acquired from B, the lessor, which held title to the plant for financing 
purposes, and the purchaser, ``X,'' has had sole and continuous 
possession and use of the plant since its construction.
    3. ``A'' proposes to acquire a $200 million tract of wilderness land 
from ``B.'' Copper deposits valued at $57 million and timber reserves 
valued at $60 million are situated on the land and will be conveyed as 
part of this transaction. During the last three fiscal years preceding 
the sale, the property generated $50,000 from the sale of a small

[[Page 570]]

amount of timber cut from the reserves two years ago. ``A's'' 
acquisition of the wilderness land from ``B'' is exempt as an 
acquisition of unproductive real property because the property did not 
generate revenues exceeding $5 million during the thirty-six months 
preceding the acquisition. The copper deposits and timber reserves are 
by definition unproductive real property and, thus, are not separately 
subject to the notification requirements.
    4. ``A'' proposes to purchase from ``B'' for $140 million an old 
steel mill that is not currently operating to add to ``A's'' existing 
steel production capacity. The mill has not generated revenues during 
the 36 months preceding the acquisition but contains equipment valued at 
$56 million that ``A'' plans to refurbish for use in its operations. 
``A's'' acquisition of the mill and the land on which it is located is 
exempt as unproductive real property. However, the transfer of the 
equipment and any assets other than the unproductive property is not 
exempt and is separately subject to the notification requirements of the 
act.
    5. ``A'' proposes to purchase two downtown lots, Parcels 1 and 2, 
from ``B'' for $70 million. Parcel 1, located in the southwest section, 
contains no structures or improvements. A hotel is located in the 
northeast section on Parcel 2, and it has generated $9 million in 
revenues during the past three years. The purchase of Parcel 1 is exempt 
if it qualifies as unproductive real property, i.e., it has not 
generated annual revenues in excess of $5 million in the three fiscal 
years prior to the acquisition. Parcel 2 is not unproductive real 
property, but its acquisition is exempt under Sec.  802.2(e) as the 
acquisition of a hotel.
    6. ``A'' plans to purchase from ``B,'' a manufacturer, a newly-
constructed building that ``B'' had intended to equip for use in its 
manufacturing operations. ``B'' was unable to secure financing to 
purchase the necessary equipment and ``A'', also a manufacturer, will be 
required to invest approximately $50 million in order to equip the 
building for use in its production operations. This building is not a 
new facility under Sec.  802.2 (a), because it was not constructed or 
held by ``B'' for sale or resale. However, the acquisition of the 
building qualifies for exemption as unproductive real property pursuant 
to Sec.  802.2(c)(1). The building is not yet a manufacturing facility 
since it does not contain equipment and requires significant capital 
investment before it can be used as a manufacturing facility.
    7. ``A'' proposes to purchase from ``B,'' for $60 million, a 100 
acre parcel of land that includes a currently operating factory 
occupying 10 acres. The other 90 adjoining acres are vacant and 
unimproved and are used by ``B'' for storage of supplies and equipment. 
The factory and the unimproved acreage have fair market values of $32 
million and $28 million, respectively. The transaction is not exempt 
under Sec.  802.2(c) because the vacant property is adjacent to property 
occupied by the operating factory. Moreover, if the 90 acres were not 
adjacent to the 10 acres occupied by the factory, the transaction would 
not be exempt because the 90 acres are being used in conjunction with 
the factory being acquired and thus are not unproductive property.
    8. ``X'' proposes to buy a five-story building from ``Y.'' The 
ground floor of this building houses a department store, and ``X'' 
currently leases the third floor to operate a medical laboratory. The 
remaining three floors are used for offices. ``X'' is not acquiring the 
business of the department store. Because the ground floor is rental 
retail space, the acquisition of which is exempt under Sec.  802.2(h), 
this part of the building is excluded from the determination of whether 
the building is used primarily for office purposes. The laboratory is 
therefore the only non-office use, and, since it makes up 25 percent of 
the remainder of the building, the building is used 75 percent for 
offices. Thus the building qualifies as an office building and its 
acquisition is therefore exempt under Sec.  802.2(d).
    9. ``A'' intends to acquire three shopping centers from ``B'' for a 
total of $180 million. The anchor stores in two of the shopping centers 
are department stores, the businesses of which ``A'' is buying from 
``B'' as part of the overall transaction. The acquisition of the 
shopping centers is an acquisition of retail rental space that is exempt 
under Sec.  802.2(h). However, ``A's'' acquisition of the department 
store businesses, including the portion of the shopping centers that the 
two department stores being purchased occupy, are separately subject to 
the notification requirements. If the value of these assets exceeds $50 
million, ``A'' must comply with the requirements of the act for this 
part of the transaction.
    10. ``A'' wishes to purchase from ``B'' a parcel of land for $67 
million. The parcel contains a race track and a golf course. The golf 
course qualifies as recreational land pursuant to Sec.  802.2(f), but 
the race track is not included in the exemption. Therefore, if the value 
of the race track is more than $50 million, ``A'' will have to file 
notification for the purchase of the race track.
    11. ``A'' intends to purchase a poultry farm from ``B.'' The 
acquisition of the poultry farm is a transfer of agricultural property 
that is exempt pursuant to Sec.  802.2(g). If, however, ``B'' has a 
poultry slaughtering and processing facility on his farm that is 
included in the acquisition, ``A's'' acquisition of the farm is not 
exempt as an acquisition of agricultural property because agricultural 
property does not include property or assets adjacent to or used in 
conjunction with a

[[Page 571]]

processing facility that is included in an acquisition.
    12. ``A'' proposes to purchase the prescription drug wholesale 
distribution business of ``B'' for $80 million. The business includes 
six regional warehouses used for ``B's'' national wholesale drug 
distribution business. Since ``A'' is acquiring the warehouses in 
connection with the acquisition of ``B's'' prescription drug wholesale 
distribution business, the acquisition of the warehouses is not exempt.

[61 FR 13686, Mar. 28, 1996, as amended at 66 FR 8692, Feb. 1, 2001; 66 
FR 23565, May 9, 2001; 67 FR 11903, Mar. 18, 2002]



Sec.  802.3  Acquisitions of carbon-based mineral reserves.

    (a) An acquisition of reserves of oil, natural gas, shale or tar 
sands, or rights to reserves of oil, natural gas, shale or tar sands 
together with associated exploration or production assets shall be 
exempt from the requirements of the act if the value of the reserves, 
the rights and the associated exploration or production assets to be 
held as a result of the acquisition does not exceed $500 million. In an 
acquisition that includes reserves of oil, natural gas, shale or tar 
sands, or rights to reserves of oil, natural gas, shale or tar sands and 
associated exploration or production assets, the transfer of any other 
assets shall be subject to the requirements of the act and these rules 
as if they were being acquired in a separate acquisition.
    (b) An acquisition of reserves of coal, or rights to reserves of 
coal and associated exploration or production assets, shall be exempt 
from the requirements of the act if the value of the reserves, the 
rights and the associated exploration or production assets to be held as 
a result of the acquisition does not exceed $200 million. In an 
acquisition that includes reserves of coal, rights to reserves of coal 
and associated exploration or production assets, the transfer of any 
other assets shall be subject to the requirements of the act and these 
rules as if they were being acquired in a separate acquisition.
    (c) Associated exploration or production assets means equipment, 
machinery, fixtures and other assets that are integral and exclusive to 
current or future exploration or production activities associated with 
the carbon-based mineral reserves that are being acquired. Associated 
exploration or production assets do not include the following:
    (1) Any pipeline and pipeline system or processing facility which 
transports or processes oil and gas after it passes through the meters 
of a producing field located within reserves that are being acquired; 
and
    (2) Any pipeline or pipeline system that receives gas directly from 
gas wells for transportation to a natural gas processing facility or 
other destination.

    Examples: 1. ``A'' proposes to purchase from ``B'' for $550 million 
gas reserves that are not yet in production and have not generated any 
income. ``A'' will also acquire from ``B'' for $280 million producing 
oil reserves and associated assets such as wells, compressors, pumps and 
other equipment. The acquisition of the gas reserves is exempt as a 
transfer of unproductive property under Sec.  802.2(c). The acquisition 
of the oil reserves and associated assets is exempt pursuant to Sec.  
802.3(a), since the value of the reserves and associated assets does not 
exceed the $500 million limitation.
    2. ``A,'' an oil company, proposes to acquire for $180 million oil 
reserves currently in production along with field pipelines and treating 
and metering facilities which serve such reserves exclusively. The 
acquisition of the reserves and the associated assets are exempt. ``A'' 
will also acquire from ``B'' for $51 million a natural gas processing 
plant and its associated gathering pipeline system. This acquisition is 
not exempt since Sec.  802.3(c) excludes these assets from the exemption 
in Sec.  802.3 for transfers of associated exploration or production 
assets.
    3. ``A,'' an oil company, proposes to acquire a coal mine currently 
in operation and associated production assets for $90 million from 
``B,'' an oil company. ``A'' will also purchase from ``B'' producing oil 
reserves valued at $100 million and an oil refinery valued at $13 
million. The acquisition of the coal mine and the oil reserves is exempt 
pursuant to Sec.  802.3. Although Sec.  802.3(c) excludes the refinery 
from the exemption in Sec.  802.3 for transfers of associated 
exploration and production assets, ``A's'' acquisition of the refinery 
is not subject to the notification requirements of the act because its 
value does not exceed $50 million.
    4. ``X'' proposes to acquire from ``Z'' coal reserves which, 
together with associated exploration assets, are valued at $230 million. 
Since the value of the reserves and the assets exceeds the $200 million 
limitation in Sec.  802.3(b), this transaction is not exempt under Sec.  
802.3. However, if the coal reserves

[[Page 572]]

qualify as unproductive property under the requirements of Sec.  
802.2(c), their acquisition, along with the acquisition of their 
associated assets, would be exempt.

[61 FR 13688, Mar. 28, 1996, as amended at 66 FR 8692, Feb. 1, 2001]



Sec.  802.4  Acquisitions of voting securities of issuers holding 
certain assets the direct acquisition of which is exempt.

    (a) An acquisition of voting securities of an issuer whose assets 
together with those of all entities it controls consist or will consist 
of assets whose purchase would be exempt from the requirements of the 
act pursuant to Section 7A(c)(2) of the act, Sec.  802.2, Sec.  802.3 or 
Sec.  802.5 of these rules is exempt from the reporting requirements if 
the acquired issuer and all entities it controls do not hold other non-
exempt assets with an aggregate fair market value of more than $50 
million.
    (b) As used in paragraph (a) of this section, issuer means a single 
issuer, or two or more issuers controlled by the same acquired person.
    (c) In connection with paragraph (a) of this section and Sec.  
801.15 (b), the value of the assets of an issuer whose voting securities 
are being acquired pursuant to this section shall be the fair market 
value, determined in accordance with Sec.  801.10(c).

    Examples: 1. ``A,'' a real estate investment company, proposes to 
purchase 100 percent of the voting securities of C, a wholly-owned 
subsidiary of ``B,'' a construction company. C's assets are a newly 
constructed, never occupied hotel, including fixtures, furnishings and 
insurance policies. The acquisition of the hotel would be exempt under 
Sec.  802.2(a) as a new facility and under Sec.  802.2(d). Therefore, 
the acquisition of the voting securities of C is exempt pursuant to 
Sec.  802.4(a) since C holds assets whose direct purchase would be 
exempt under Sec.  802.2 and does not hold non-exempt assets exceeding 
$50 million in value.
    2. ``A'' proposes to acquire 60 percent of the voting securities of 
C from ``B.'' C's assets consist of a portfolio of mortgages valued at 
$55 million and a small manufacturing plant valued at $26 million. The 
manufacturing plant is an operating unit for purposes of Sec.  802.1(a). 
Since the acquisition of the mortgages would be exempt pursuant to 
Section 7A(c)(2) of the act and since the value of the non-exempt 
manufacturing plant is less than $50 million, this acquisition is exempt 
under Sec.  802.4(a).
    3. ``A'' proposes to acquire from ``B'' 100 percent of the voting 
securities of each of three issuers, M, N and O, simultaneously. M's 
assets consist of oil reserves worth $160 million and coal reserves 
worth $40 million. N has assets consisting of $130 million of gas 
reserves and $100 million of coal reserves. O's assets are oil shale 
reserves worth $140 million and a coal mine worth $80 million. Since 
``A'' is simultaneously acquiring the voting securities of three issuers 
from the same acquired person, it must aggregate the assets of the 
issuers to determine if any of the limitations in Sec.  802.3 is 
exceeded. As a result of aggregating the assets of M, N and O, ``A's'' 
holdings of oil and gas reserves are below the $500 limitation for such 
assets in Sec.  802.3(a). However, the aggregated holdings exceed the 
$200 million limitation for coal reserves in Sec.  802.3(b). ``A's'' 
acquisition therefore is not exempt, and it must report the entire 
transaction.

[61 FR 13688, Mar. 28, 1996, as amended at 66 FR 8693, Feb. 1, 2001]



Sec.  802.5  Acquisitions of investment rental property assets.

    (a) Acquisitions of investment rental property assets shall be 
exempt from the requirements of the act.
    (b) Investment rental property assets. ``Investment rental property 
assets'' means real property that will not be rented to entities 
included within the acquiring person except for the sole purpose of 
maintaining, managing or supervising the operation of the real property, 
and will be held solely for rental or investment purposes. In an 
acquisition that includes investment rental property assets, the 
transfer of any property or assets that are not investment rental 
property assets shall be subject to the requirements of the act and 
these rules as if they were being acquired in a separate transaction. 
Investment rental property assets include:
    (1) Property currently rented,
    (2) Property held for rent but not currently rented,
    (3) Common areas on the property, and
    (4) Assets incidental to the ownership of property, which may 
include cash, prepaid taxes or insurance, rental receivables and the 
like.
    Example: 1. ``X'', a corporation, proposes to purchase a sports/
entertainment complex which it will rent to professional sports teams 
and promoters of special events for concerts, ice shows, sporting events 
and

[[Page 573]]

other entertainment activities. ``X'' will provide office space in the 
complex for ``Y'', a management company which will maintain and manage 
the facility for ``X.'' This acquisition is an exempt acquisition of 
investment rental property assets since ``X'' intends to rent the 
facility to third parties and is providing space within the facility to 
a management company solely to maintain, manage or supervise the 
operation of the facility on its behalf. If, however, ``X'' controls Z, 
a concert promoter to whom it also intends to rent the complex, the 
acquisition would not be exempt under Sec.  802.5, since the property 
would not meet the requirements of Sec.  802.5(b)(1).
    2. ``X'' intends to buy from ``Y'' a development commonly referred 
to as an industrial park. The industrial park contains a warehouse/
distribution center, a retail tire and automobile parts store, an office 
building, and a small factory. The industrial park also contains several 
parcels of vacant land. If ``X'' intends to acquire this industrial park 
as investment rental property, the acquisition will be exempt pursuant 
to Sec.  802.5. If, however, ``X'' intends to use the factory for its 
own manufacturing operations, this exemption would be unavailable. The 
exemptions in Sec.  802.2 for warehouses, rental retail space, office 
buildings, and undeveloped land may still apply and, if the value of the 
factory is $50 million or less, the entire transaction may be exempted 
by that section.

[61 FR 13688, Mar. 28, 1996, as amended at 66 FR 8693, Feb. 1, 2001]



Sec.  802.6  Federal agency approval.

    (a) For the purposes of section 7A (c)(6) and (c)(8), the term 
information and documentary material includes one copy of all documents, 
application forms, and all written submissions of any type whatsoever. 
In lieu of providing all such information and documentary material, or 
any portion thereof, one copy of an index describing such information 
and documentary material may be provided, together with a certification 
that any such information or documentary material not provided will be 
provided within 10 calendar days upon request by the Federal Trade 
Commission or Assistant Attorney General, or a delegated official of 
either. Any material submitted pursuant to this section shall be 
submitted to the offices specified in Sec.  803.10(c).
    (b)(1) A mixed transaction is one that has some portion that is 
exempt under Section 7A (c)(6), (c)(7) or (c)(8) because it requires 
regulatory agency premerger competitive review and approval, and another 
portion that does not require such review.
    (2) The portion of a mixed transaction that does not require advance 
competitive review and approval by a regulatory agency is subject to the 
act and these rules as if it were being acquired in a separate 
acquisition.

    Example: Bank ``A'' acquires Bank ``B'', which owns a financial 
subsidiary engaged in securities underwriting. ``A'''s acquisition of 
``B'' requires agency approval by the Office of the Comptroller of the 
Currency, the Board of Governors of the Federal Reserve System or 
Federal Deposit Insurance Corporation (depending on whether ``A'' is a 
national bank, state member bank, or state non-member bank under section 
18(c) of the FDI Act), and therefore is exempt from filing under Section 
7A (c)(7). However, the acquisition of the financial subsidiary is 
subject to HSR reporting requirements, and ``A'' and ``B'' each must 
make a filing for that portion of the transaction and observe the 
waiting period if the act's thresholds are met.

[43 FR 33544, July 31, 1978, as amended at 48 FR 34435, July 29, 1983; 
66 FR 8693, Feb. 1, 2001; 67 FR 11903, Mar. 18, 2002]



Sec.  802.8  Certain supervisory acquisitions.

    (a) A merger, consolidation, purchase of assets, or acquisition 
requiring agency approval under sections 403 or 408(e) of the National 
Housing Act, 12 U.S.C. 1726, 1730a(e), or under section 5 of the Home 
Owners' Loan Act of 1933, 12 U.S.C. 1464, shall be exempt from the 
requirements of the act, including specifically the filing requirement 
of Section 7A(c)(8), if the agency whose approval is required finds that 
approval of such merger, consolidation, purchase of assets, or 
acquisition is necessary to prevent the probable failure of one of the 
institutions involved.
    (b)(1) A merger, consolidation, purchase of assets, or acquisition 
which requires agency approval under 12 U.S.C. 1817(j) or 12 U.S.C. 
1730(q) shall be exempt from the requirements of the act if copies of 
all information and documentary materials filed with any such agency are 
contemporaneously filed with the Federal Trade Commission and the 
Assistant Attorney General at least 30 days prior to consummation of the 
proposed acquisition.

[[Page 574]]

    (2) A transaction described in paragraph (b)(1) of this section 
shall be exempt from the requirements of the act, including specifically 
the filing requirement, if the agency whose approval is required finds 
that approval of such transaction is necessary to prevent the probable 
failure of one of the institutions involved.

[43 FR 33544, July 31, 1978, as amended at 48 FR 34436, July 29, 1983; 
67 FR 11903, Mar. 18, 2002]



Sec.  802.9  Acquisition solely for the purpose of investment.

    An acquisition of voting securities shall be exempt from the 
requirements of the act pursuant to section 7A(c)(9) if made solely for 
the purpose of investment and if, as a result of the acquisition, the 
acquiring person would hold ten percent or less of the outstanding 
voting securities of the issuer, regardless of the dollar value of 
voting securities so acquired or held.

    Examples: 1. Suppose that acquiring person ``A'' acquires 6 percent 
of the voting securities of issuer X, valued at $52 million. If the 
acquisition is solely for the purpose of investment, it is exempt under 
Section 7A(c)(9).
    2. After the acquisition in example 1, ``A'' decides to acquire an 
additional 7 percent of the voting securities of X. Regardless of ``A'' 
's intentions, the acquisition is not exempt under section 7A(c)(9).
    3. After the acquisition in example 1, acquiring person ``A'' 
decides to participate in the management of issuer X. Any subsequent 
acquisitions of X stock by ``A'' would not be exempt under section 
7A(c)(9).

[43 FR 33544, July 31, 1978, as amended at 66 FR 8693, Feb. 1, 2001]



Sec.  802.10  Stock dividends and splits.

    The acquisition of voting securities, pursuant to a stock split or 
pro rata stock dividend, shall be exempt from the requirements of the 
act under section 7A(c)(10).



Sec.  802.20  [Reserved]



Sec.  802.21  Acquisitions of voting securities not meeting or exceeding 
greater notification threshold.

    (a) An acquisition of voting securities shall be exempt from the 
requirements of the act if:
    (1) The acquiring person and all other persons required by the act 
and these rules to file notification filed notification with respect to 
an earlier acquisition of voting securities of the same issuer;
    (2) The waiting period with respect to the earlier acquisition has 
expired, or been terminated pursuant to Sec.  803.11, and the 
acquisition will be consummated within 5 years of such expiration or 
termination; and
    (3) The acquisition will not increase the holdings of the acquiring 
person to meet or exceed a notification threshold greater than the 
greatest notification threshold met or exceeded in the earlier 
acquisition.

    Examples: 1. Corporation A acquires $53 million of the voting 
securities of corporation B and both ``A'' and ``B'' file notification 
as required, indicating the $50 million threshold. Within five years of 
the expiration of the original waiting period, ``A'' acquires additional 
voting securities of B but not in an amount sufficient to meet or exceed 
$100 million or 50 percent of the voting securities of B. No additional 
notification is required.
    2. In Example 1, ``A'' continues to acquire B's securities. Before 
``A's'' holdings meet or exceed $100 million or 50 percent of B's 
outstanding voting securities, ``A'' and ``B'' must file notification 
and wait the prescribed period, regardless of whether the acquisition 
occurs within five years after the expiration of the earlier waiting 
period.
    3. In Example 2, suppose that ``A'' and ``B'' file notification at 
the $500 million level and that, within 5 years after expiration of the 
waiting period, ``A'' continues to acquire voting securities of B. No 
further notification is required until ``A'' plans to make the 
acquisition that will give it 25 percent of B's voting securities valued 
at over $1 billion; or 50 percent ownership of B. (Once ``A'' holds 50 
percent, further acquisitions of voting securities are exempt under 
Section 7A(c)(3)).
    4. This section also allows a person to recross any of the threshold 
notification levels--$50 million, $100 million, $500 million, 25 percent 
(if valued over $1 billion) and 50 percent--any number of times within 5 
years of the expiration of the waiting period following notification for 
that level. Thus, if in Example 1, ``A'' had disposed of some voting 
securities so that it held less than $50 million of the voting 
securities of B, and thereafter had increased its holdings to more than 
$50 million but less than $100 million or 50 percent of B, notification 
would not be required if the increase occurred within 5 years of the 
expiration of the original waiting period. Similarly, in Examples 2 and 
3, ``A'' could decrease its holdings below, and then

[[Page 575]]

increase its holdings above, $50 million and $500 million, respectively 
without filing notification, if done within 5 years of the expiration of 
those respective waiting periods.

    (b) Year 2001 transition. For transactions filed using the 1978 
thresholds where the waiting period expired after February 1, 1996, an 
acquiring person may, during the five-year period following expiration 
of the waiting period, acquire up to what was the next percentage 
threshold at the time it made its filing without filing another 
notification, even if in doing so it crosses a 2001 notification 
threshold in Sec.  801.1(h) of this chapter. However, after the end of 
that period, any additional acquisition will be the subject of a new 
notification if it meets or exceeds a 2001 threshold in Sec.  801.1(h) 
of this chapter.

    Examples: 1. Corporation A filed to acquire 20 percent of the voting 
securities of corporation B and indicated the 15 percent threshold. The 
waiting period expired on October 3, 1999. ``A'' acquired the 20 percent 
within the year following expiration of the waiting period. ``A'' has 
until October 3, 2004, to acquire additional securities up to 25 percent 
of ``B'''s voting securities, and need not make another filing before 
doing so, even though such acquisition by ``A'' may cross the $50 
million, $100 million or $500 million notification threshold in Sec.  
801.1(h) of this chapter. After October 3, 2004, ``A'' and ``B'' must 
observe the 2001 notification thresholds set forth in Sec.  801.1(h) of 
this chapter.
    2. Prior to February 1, 2001, ``A'' filed to acquire 12 percent of 
the voting securities of corporation B, valued at $120 million, and 
indicated the $15 million notification threshold. After February 1, 
2001, ``A'' determines that it will make an additional acquisition which 
will result in its holding 16 percent of the voting securities of B, 
valued at $160 million. ``A'' is required to file notification at the 
$100 million notification threshold prior to making the acquisition 
since it is now crossing the next higher 1978 threshold (15 percent).
    3. Prior to February 1, 2001, ``A'' filed to acquire 26 percent of 
the voting securities of ``B'' and indicated the 25 percent notification 
threshold. After the end of the five-year period following expiration of 
the waiting period, ``A'' will acquire additional shares of ``B'' which 
will result in its holding 30 percent of the voting securities of ``B'', 
valued at $125 million. ``A'' is required to file notification at the 
$100 million notification threshold prior to making the acquisition. 
``A'' could, however, have reached this level (30 percent valued at $125 
million) prior to the end of the five-year period without making an 
additional filing since it would not have crossed the next higher 
threshold at the time it filed (50 percent) and the acquisition would 
have been exempted by this Sec.  802.21(b).

    (c) The acquisition will not increase the holdings of the acquiring 
person to meet or exceed a notification threshold greater than the 
greatest notification threshold met or exceeded in the earlier 
acquisition.

[43 FR 33544, July 31, 1978, as amended at 66 FR 8693, Feb. 1, 2001; 67 
FR 11906, Mar. 18, 2002]



Sec.  802.23  Amended or renewed tender offers.

    Whenever a tender offer is amended or renewed after notification has 
been filed by the offeror, no new notification shall be required, and 
the running of the waiting period shall be unaffected, except as 
follows:
    (a) If the number of voting securities to be acquired pursuant to 
the offer is increased such that a greater notification threshold would 
be met or exceeded, only the acquiring person need again file 
notification, but a new waiting period must be observed;
    (b) If a noncash tender offer is amended to become a cash tender 
offer, (1) one copy of the amended tender offer shall be filed in the 
manner prescribed by Sec.  803.10(c) with the Federal Trade Commission 
and Assistant Attorney General, and (2) subject to the provisions of 
Sec.  803.10(b)(1), the waiting period shall expire on the 15th day 
after the date of receipt (determined in accordance with Sec.  
803.10(c)) of the amended tender offer, or on the 30th day after filing 
notification, whichever is earlier; or
    (c) If a cash tender offer is amended to become a noncash tender 
offer, (1) one copy of the amended tender offer shall be filed in the 
manner prescribed by Sec.  803.10(c) with the Federal Trade Commission 
and Assistant Attorney General, and (2) subject to the provisions of 
Sec.  803.10(b)(1), the waiting period shall expire on the 15th day 
after the date of receipt (as determined in accordance with Sec.  
803.10(c)) of the amended tender offer, or on the 30th day after filing 
notification, whichever is later.

    Examples: 1. Assume that corporation A makes a tender offer for 20 
percent of the

[[Page 576]]

voting securities of corporation B and that ``A'' files notification. 
Under this section, if A subsequently amends its tender offer only as to 
the amount of consideration offered, the waiting period so commenced is 
not affected, and no new notification need be filed.
    2. In the previous example, assume that A makes an amended tender 
offer for 27 percent of the voting securities of B, valued at greater 
than $1 billion. Since a new notification threshold will be crossed, 
this section requires that ``A'' must again file notification and 
observe a new waiting period. Paragraph (a) of this section, however, 
provides that ``B'' need not file notification again.
    3. Assume that ``A'' makes a tender offer for shares of corporation 
B. ``A'' includes its voting securities as part of the consideration. 
``A'' files notification. Five days later, ``A'' changes its tender 
offer to a cash tender offer, and on the same day files copies of its 
amended tender offer with the offices designated in Sec.  803.10(c). 
Under paragraph (b) of this section, the waiting period expires (unless 
extended or terminated) 15 days after the receipt of the amended offer 
(on the 20th day after filing notification), since that occurs earlier 
than the expiration of the original waiting period (which would occur on 
the 30th day after filing).
    4. Assume that ``A'' makes a cash tender offer for shares of 
corporation B and files notification. Six days later, ``A'' amends the 
tender offer and adds voting securities as consideration, and on the 
same day files copies of the amended tender offer with the offices 
designated in Sec.  803.10(c). Under paragraph (c) of this section, the 
waiting period expires (unless extended or terminated) on the 30th day 
following the date of filing of notification (determined under Sec.  
803.10(c)), since that occurs later than the 15th day after receipt of 
the amended tender offer (which would occur on the 21st day).

[43 FR 33544, July 31, 1978; 43 FR 36054, Aug. 15, 1978, as amended at 
66 FR 8694, Feb. 1, 2001]



Sec.  802.30  Intraperson transactions.

    An acquisition (other than the formation of a joint venture or other 
corporation the voting securities of which will be held by two or more 
persons) in which, by reason of holdings of voting securities, the 
acquiring and acquired persons are (or as a result of formation of a 
wholly owned entity will be) the same person, shall be exempt from the 
requirements of the act.

    Examples: 1. Corporation A merges its two wholly owned subsidiaries 
S1 and S2. The transaction is exempt under this section.
    2. Corporation B creates a new wholly owned subsidiary. The 
transaction is exempt under this section.
    3. Corporation A, which controls corporation B by a contract giving 
A the power to name a majority of B's directors, but which holds no 
voting securities of B, proposes to acquire 15 percent of B's voting 
securities. The transaction is not exempt under this section, since 
``A'' and ``B'' are not the same person ``by reason of holdings of 
voting securities.''
    4. Corporation A repurchases a portion of its voting securities in a 
series of transactions involving numerous sellers. All of these 
acquisitions are exempt under this section. The redemption or retirement 
of securities would likewise be exempt under this section.
    5. Corporations A and B (which are not included within the same 
person) form a new corporation, C. A and B will each hold C's voting 
securities upon formation. This section is inapplicable, and the 
acquisitions of C's voting securities by A and B are not exempt.



Sec.  802.31  Acquisitions of convertible voting securities.

    Acquisitions of convertible voting securities shall be exempt from 
the requirements of the act.

    Example: This section applies regardless of the dollar value of the 
convertible voting securities held or to be acquired. Note, however, 
that subsequent conversions of convertible voting securities may be 
subject to the requirements of the act. See Sec.  801.32.

[43 FR 33544, July 31, 1978, as amended at 66 FR 8694, Feb. 1, 2001]



Sec.  802.35  Acquisitions by employee trusts.

    An acquisition of voting securities shall be exempt from the 
notification requirements of the act if:
    (a) The securities are acquired by a trust that meets the 
qualifications of section 401 of the Internal Revenue Code;
    (b) The trust is controlled by a person that employs the 
beneficiaries and,
    (c) The voting securities acquired are those of that person or an 
entity within that person.

    Examples: 1. Company A establishes a trust for its employees that 
meets the qualifications of section 401 of the Internal Revenue Code. 
Company A has the power to designate

[[Page 577]]

the trustee of the trust. That trust then acquires 30% of the voting 
securities of Company A for $120 million. Later, the trust acquires 20% 
of the stock of Company B, a wholly-owned subsidiary of Company A, for 
$58 million. Neither acquisition is reportable.
    2. Assume that in the example above, ``A'' has total assets of $100 
million. ``C'' also has total assets of $100 million and is not 
controlled by Company A. The trust controlled by Company A plans to 
acquire 40 percent of the voting securities of Company C for $80 
million. Since Company C is not included within ``A,'' ``A'' must 
observe the requirements of the act before the trust makes the 
acquisition of Company C's shares.

[52 FR 7082, Mar. 6, 1987, as amended at 66 FR 8694, Feb. 1, 2001]



Sec.  802.40  Exempt formation of joint venture or other corporations.

    Acquisitions of the voting securities of a joint venture or other 
corporation at the time of formation under Sec.  801.40 shall be exempt 
from the requirements of the act if the joint venture or other 
corporation will be not for profit within the meaning of sections 
501(c)(1)-(4), (6)-(15), (17)-(20) or (d) of the Internal Revenue Code.



Sec.  802.41  Joint venture or other corporations at time of formation.

    Whenever any person(s) contributing to the formation of a joint 
venture or other corporation are subject to the requirements of the act 
by reason of Sec.  801.40, the joint venture or other corporation need 
not file the notification required by the act and Sec.  803.1.

    Examples: 1. Corporations A and B, each having sales of $200 
million, each propose to contribute $80 million in cash in exchange for 
50 percent of the voting securities of a new corporation, N. Under this 
section, the new corporation need not file notification, although both 
``A'' and ``B'' must do so and observe the waiting period prior to 
receiving any voting securities of N.
    2. In addition to the facts in example 1 above, A and B have agreed 
that upon creation N will purchase 100 percent of the voting securities 
of corporation C for $55 million. Because N's purchase of C is not a 
transaction in connection with N's formation, and because in any event C 
is not a contributor to the formation of N, ``A,'' ``B'' and ``C'' must 
file with respect to the proposed acquisition of C and must observe the 
waiting period.

[43 FR 33544, July 31, 1978, as amended at 52 FR 7082, Mar. 6, 1987; 66 
FR 8694, Feb. 1, 2001]



Sec.  802.42  Partial exemption for acquisitions in connection with 
the formation of certain joint ventures or other corporations.

    (a) Whenever one or more of the contributors in the formation of a 
joint venture or other corporation which otherwise would be subject to 
the requirements of the act by reason of Sec.  801.40 are exempt from 
these requirements under section 7A(c)(8), any other contributor in the 
formation which is subject to the act and not exempt under section 
7A(c)(8) need not file a Notification and Report Form, provided that no 
less than 30 days prior to the date of consummation any such contributor 
claiming this exemption has submitted an affidavit to the Federal Trade 
Commission and to the Assistant Attorney General stating its good faith 
intention to make the proposed acquisition and asserting the 
applicability of this exemption.
    (b) Persons relieved of the requirement to file a Notification and 
Report Form pursuant to paragraph (a) of this section remain subject to 
all other provisions of the act and these rules.

[48 FR 34436, July 29, 1983]



Sec.  802.50  Acquisitions of foreign assets.

    (a) The acquisition of assets located outside the United States 
shall be exempt from the requirements of the act unless the foreign 
assets the acquiring person would hold as a result of the acquisition 
generated sales in or into the U.S. exceeding $50 million during the 
acquired person's most recent fiscal year.
    (b) Where the foreign assets being acquired exceed the threshold in 
paragraph (a) of this section, the acquisition nevertheless shall be 
exempt where:
    (1) Both acquiring and acquired persons are foreign;
    (2) The aggregate sales of the acquiring and acquired persons in or 
into the United States are less than $110 million in their respective 
most recent fiscal years;

[[Page 578]]

    (3) The aggregate total assets of the acquiring and acquired persons 
located in the United States (other than investment assets, voting or 
nonvoting securities of another person, and assets included pursuant to 
Sec.  801.40(d)(2) of this chapter) are less than $110 million; and
    (4) The transaction does not meet the criteria of Section 
7A(a)(2)(A).

    Example to Sec. 802.50: 1. Assume that ``A'' and ``B'' are both U.S. 
persons. ``A'' proposes selling to ``B'' a manufacturing plant located 
abroad. Sales in or into the United States attributable to the plant 
totaled $13 million in the most recent fiscal year. The transaction is 
exempt under this paragraph (a) of this section.
    2. Sixty days after the transaction in example 1, ``A'' proposes to 
sell to ``B'' a second manufacturing plant located abroad; sales in or 
into the United States attributable to this plant totaled $38 million in 
the most recent fiscal year. Since ``B'' would be acquiring the second 
plant within 180 days of the first plant, both plants would be 
considered assets of ``A'' held by ``B'' as a result of the second 
acquisition (see Sec.  801.13(b)(2) of this chapter). Since the total 
sales in or into the United States exceed $50 million, the acquisition 
of the second plant would not be exempt under this paragraph (a) of this 
section.
    3. Assume that ``A'' and ``B'' are foreign persons with aggregate 
sales in or into the United States of $200 million. If ``A'' acquires 
only foreign assets of ``B,'' and if those assets generated $50 million 
or less in sales in or into the United States, the transaction is 
exempt.
    4. Assume that ``A'' and ``B'' are foreign persons with aggregate 
sales in or into the United States and assets located in the United 
Sates of less than $100 million. If ``A'' acquires only foreign assets 
of ``B'', and those assets generated in excess of $50 million in sales 
in or into the United States during the most recent fiscal year, the 
transaction is exempt from reporting if the assets are valued at $200 
million or less, but is reportable if valued at greater than $200 
million.

[67 FR 11903, Mar. 18, 2002]



Sec.  802.51  Acquisitions of voting securities of a foreign issuer.

    (a) By U.S. persons. (1) The acquisition of voting securities of a 
foreign issuer by a U.S. person shall be exempt from the requirements of 
the act unless the issuer (including all entities controlled by the 
issuer) either: holds assets located in the United States (other than 
investment assets, voting or nonvoting securities of another person, and 
assets included pursuant to Sec.  801.40(d)(2) of this chapter) having 
an aggregate total value of over $50 million; or made aggregate sales in 
or into the United States of over $50 million in its most recent fiscal 
year.
    (2) If interests in multiple foreign issuers are being acquired from 
the same acquired person, the assets located in the United States and 
sales in or into the United States of all the issuers must be aggregated 
to determine whether either $50 million threshold is exceeded.
    (b) By foreign persons. (1) The acquisition of voting securities of 
a foreign issuer by a foreign person shall be exempt from the 
requirements of the act unless the acquisition will confer control of 
the issuer and the issuer (including all entities controlled by the 
issuer) either: holds assets located in the United States (other than 
investment assets, voting or nonvoting securities of another person, and 
assets included pursuant to Sec.  801.40(d)(2) of this chapter) having 
an aggregate total value of over $50 million; or made aggregate sales in 
or into the United States of over $50 million in its most recent fiscal 
year.
    (2) If controlling interests in multiple foreign issuers are being 
acquired from the same acquired person, the assets located in the United 
States and sales in or into the United States of all the issuers must be 
aggregated to determine whether either $50 million threshold is 
exceeded.
    (c) Where a foreign issuer whose securities are being acquired 
exceeds the threshold in paragraph (b)(1) of this section, the 
acquisition nevertheless shall be exempt where:
    (1) Both acquiring and acquired persons are foreign;
    (2) The aggregate sales of the acquiring and acquired persons in or 
into the United States are less than $110 million in their respective 
most recent fiscal years;
    (3) The aggregate total assets of the acquiring and acquired persons 
located in the United States (other than investment assets, voting or 
nonvoting securities of another person, and assets included pursuant to 
Sec.  801.40(d)(2) of

[[Page 579]]

this chapter) are less than $110 million; and
    (4) The transaction does not meet the criteria of Section 
7A(a)(2)(A).

    Example to Sec.  802.51 1. ``A,'' a U.S. person, is to acquire the 
voting securities of C, a foreign issuer. C has no assets in the United 
States, but made aggregate sales into the United States of $77 million 
in the most recent fiscal year. The transaction is not exempt under this 
section.
    2. Assume that ``A'' and ``B'' are foreign persons with aggregate 
sales in or into the United States of $200 million, and that ``A'' is 
acquiring 100% of the voting securities of ``B.'' Included within ``B'' 
is U.S. issuer C, whose total U.S. assets are valued at $161 million. 
Since ``A'' will be acquiring control of an issuer, C, with total U.S. 
assets of more than $50 million, and the parties' aggregate sales in or 
into the U.S. in the relevant time period exceed $110 million, the 
acquisition is not exempt under this section.
    3. ``A,'' a foreign person, intends to acquire 100 percent of the 
voting securities of two wholly owned subsidiaries of ``B'' for a total 
of $65 million. BSUB1 is a foreign issuer with $10 million in sales into 
the U.S. in its most recent fiscal year and with assets of $10 million 
located in the U.S. $20 million of the acquisition price has been 
allocated to BSUB1. BSUB2 is a U.S. issuer with $60 million in U.S. 
sales and $60 million in assets located in the U.S. The remaining $45 
million of the acquisition price is allocated to BSUB2. Since BSUB1 does 
not exceed the $50 million limitation for U.S. sales or assets in Sec.  
802.51(b), its voting securities are not held as a result of the 
acquisition (see Sec.  801.15(b) of this chapter). Since the acquisition 
price for BSUB2 alone would not result in ``A'' holding in excess of $50 
million of voting securities of the acquired person, the transaction is 
non-reportable in its entirety. Note that the U.S. sales and assets of 
BSUB1 are not aggregated with those of BSUB2 for purposes of determining 
whether the limitations in paragraph (b) of this section are exceeded. 
If BSUB2 were also a foreign issuer, such aggregation would be required 
under paragraph (b)(2) of this section, and the transaction in its 
entirety would be reportable.

[67 FR 11904, Mar. 18, 2002; 67 FR 13716, Mar. 26, 2002]



Sec.  802.52  Acquisitions by or from foreign governmental corporations.

    An acquisition shall be exempt from the requirements of the act if:
    (a) The ultimate parent entity of either the acquiring person or the 
acquired person is controlled by a foreign state, foreign government, or 
agency thereof; and
    (b) The acquisition is of assets located within that foreign state 
or of voting securities of an issuer organized under the laws of that 
state.

    Example: The government of foreign country X has decided to sell 
assets of its wholly owned corporation, B, all of which are located in 
foreign country X. The buyer is ``A,'' a U.S. person. Regardless of the 
aggregate sales in or into the United States attributable to the assets 
of B, the transaction is exempt under this section. (If such aggregate 
sales were $50 million or less, the transaction would also be exempt 
under Sec.  802.50.)

[43 FR 33544, July 31, 1978, as amended at 67 FR 11904, Mar. 18, 2002]



Sec.  802.53  Certain foreign banking transactions.

    An acquisition which requires the consent or approval of the Board 
of Governors of the Federal Reserve System under section 25 or section 
25(a) of the Federal Reserve Act, 12 U.S.C. 601, 615, shall be exempt 
from the requirements of the act if copies of all information and 
documentary material filed with the Board of Governors are 
contemporaneously filed with the Federal Trade Commission and Assistant 
Attorney General at least 30 days prior to consummation of the 
acquisition. In lieu of such information and documentary material or any 
portion thereof, an index describing such material may be provided in 
the manner authorized by Sec.  802.6(a).

[43 FR 33544, July 31, 1978, as amended at 48 FR 34435, July 29, 1983]



Sec.  802.60  Acquisitions by securities underwriters.

    An acquisition of voting securities by a person acting as a 
securities underwriter, in the ordinary course of business, and in the 
process of underwriting, shall be exempt from the requirements of the 
act.



Sec.  802.63  Certain acquisitions by creditors and insurers.

    (a) Creditors. An acquisition of collateral or receivables, or an 
acquisition in foreclosure, or upon default, or in connection with the 
establishment of a lease financing, or in connection with a bona fide 
debt work-out shall be exempt from the requirements of the act if made 
by a creditor in a bona fide

[[Page 580]]

credit transaction entered into in the ordinary course of the creditor's 
business.
    (b) Insurers. An acquisition pursuant to a condition in a contract 
of insurance relating to fidelity, surety, or casualty obligations shall 
be exempt from the requirements of the act if made by an insurer in the 
ordinary course of business.

    Examples: 1. A bank makes a loan and takes actual or constructive 
possession of collateral in any form. Since the bank is not the 
beneficial owner of the collateral, the bank's receipt of it is not an 
acquisition which is subject to the requirements of the act. However, if 
upon default the bank becomes the beneficial owner of the collateral, 
that acquisition is exempt under this section.
    2. This section exempts only the acquisition by the creditor or 
insurer, and not the subsequent disposition of the assets or voting 
securities. If a creditor or insurer sells voting securities or assets 
that have come into its possession in a transaction which is exempt 
under this section, the requirements of the act may apply to that 
disposition.



Sec.  802.64  Acquisitions of voting securities by certain institutional investors.

    (a) Institutional investor. For purposes of this section, the term 
institutional investor means any entity of the following type:
    (1) A bank within the meaning of 15 U.S.C. 80b-2(a)(2);
    (2) Savings bank;
    (3) Savings and loan or building and loan company or association;
    (4) Trust company;
    (5) Insurance company;
    (6) Investment company registered with the U.S. Securities and 
Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. 
80a-1 et seq.);
    (7) Finance company;
    (8) Broker-dealer within the meaning of 15 U.S.C. 78c(a)(4) or 
(a)(5);
    (9) Small Business Investment Company or Minority Enterprise Small 
Business Investment Company regulated by the U.S. Small Business 
Administration pursuant to 15 U.S.C. 662;
    (10) A stock bonus, pension, or profit-sharing trust qualified under 
section 401 of the Internal Revenue Code;
    (11) Bank holding company within the meaning of 12 U.S.C. 1841;
    (12) An entity which is controlled directly or indirectly by an 
institutional investor and the activities of which are in the ordinary 
course of business of the institutional investor;
    (13) An entity which may supply incidental services to entities 
which it controls directly or indirectly but which performs no operating 
functions, and which is otherwise engaged only in holding controlling 
interests in institutional investors; or
    (14) A nonprofit entity within the meaning of sections 501(c) (1) 
through (4), (6) through (15), (17) through (20), or (d) of the Internal 
Revenue Code.
    (b) Exemption. An acquisition of voting securities shall be exempt 
from the requirements of the act, except as provided in paragraph (c) of 
this section, if:
    (1) Made directly by an institutional investor;
    (2) Made in the ordinary course of business;
    (3) Made solely for the purpose of investment; and
    (4) As a result of the acquisition the acquiring person would hold 
fifteen percent or less of the outstanding voting securities of the 
issuer.
    (c) Exception to exemption. Notwithstanding paragraph (b) of this 
section:
    (1) No acquisition of voting securities of an institutional investor 
of the same type as any entity included within the acquiring person 
shall be exempt under this section; and
    (2) No acquisition by an institutional investor shall be exempt 
under this section if any entity included within the acquiring person 
which is not an institutional investor holds any voting securities of 
the issuer whose voting securities are to be acquired.

    Examples: 1. Assume that A and its subsidiary, B, are both 
institutional investors as defined in paragraph (a) of this section, 
that X is not, and that the conditions set forth in paragraphs (b)(2), 
(3) and (4) of this section are satisfied. Either A or B may acquire 
voting securities of X worth in excess of $50 million as long as the 
aggregate amount held by person ``A'' as a result of the acquisition 
does not exceed 15 percent of X's outstanding voting securities. If the 
aggregate holdings would exceed 15 percent, ``A'' may acquire no more 
than $50 million worth of voting securities without being subject to the 
requirements of the act.

[[Page 581]]

    2. In example 1, assume that B plans to make the acquisition, but 
that corporation B's parent, corporation A, is not an institutional 
investor and is engaged in manufacturing. Subparagraph (c)(2) provides 
that acquisitions by B can never be exempt under this section if A owns 
any amount of X's voting securities.
    3. In example 1, the exemption does not apply if X is also an 
institutional investor of the same type as either A or B.
    4. Assume that H is a holding company which controls a life 
insurance company, a casualty insurer and a finance company. The life 
insurance company controls a data processing company which performs 
services for the two insurers. Any acquisition by any of these entities 
could qualify for exemption under this section.
    5. In example 4, if H also controls a manufacturing entity, H is not 
an institutional investor, and only the acquisitions made by the two 
insurance companies, the finance company and the data processing company 
can qualify for the exemption under this section.

[43 FR 33544, July 31, 1978, as amended at 66 FR 8694, Feb. 1, 2001]



Sec.  802.70  Acquisitions subject to order.

    An acquisition shall be exempt from the requirements of the act if 
the voting securities or assets are to be acquired from an entity 
pursuant to and in accordance with:
    (a) An order of the Federal Trade Commission or of any Federal court 
in an action brought by the Federal Trade Commission or the Department 
of Justice;
    (b) An Agreement Containing Consent Order that has been accepted by 
the Commission for public comment, pursuant to the Commission's Rules of 
Practice; or
    (c) A proposal for a consent judgment that has been submitted to a 
Federal court by the Federal Trade Commission or the Department of 
Justice and that is subject to public comment.

[63 FR 34594, June 25, 1998]



Sec.  802.71  Acquisitions by gift, intestate succession or devise, or 
by irrevocable trust.

    Acquisitions resulting from a gift, intestate succession, 
testamentary disposition or transfer by a settlor to an irrevocable 
trust shall be exempt from the requirements of the act.



PART 803_TRANSMITTAL RULES--Table of Contents




Sec.
803.1 Notification and Report Form.
803.2 Instructions applicable to Notification and Report Form.
803.3 Statement of reasons for noncompliance.
803.4 Foreign persons refusing to file notification.
803.5 Affidavits required.
803.6 Certification.
803.7 Expiration of notification.
803.8 Foreign language documents.
803.9 Filing fee.
803.10 Running of time.
803.11 Termination of waiting period.
803.20 Requests for additional information or documentary material.
803.21 Additional information shall be supplied within reasonable time.
803.30 Formal and informal interpretations of requirements under the Act 
          and the rules.
803.90 Separability.

Appendix to Part 803--Antitrust Improvements Act Notification and Report 
          Form for Certain Mergers and Acquisitions

    Authority: 15 U.S.C. 18a(d).

    Source: 43 FR 33548, July 31, 1978, unless otherwise noted.



Sec.  803.1  Notification and Report Form.

    (a) The notification required by the act shall be the Notification 
and Report Form set forth in the appendix to this part (803), as amended 
from time to time. All acquiring and acquired persons required to file 
notification by the act and these rules shall do so by completing and 
filing the Notification and Report Form, or a photostatic or other 
equivalent reproduction thereof, in accordance with the instructions 
thereon and these rules. Copies of the Notification and Report Form may 
be obtained in person from the Public Reference Branch, Room 130, 
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC, 
20580, or by writing to the Premerger Notification Office, Room 303, 
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 
20580. The Notification and Report Form also can be downloaded from the 
Federal Trade Commission's web site at www.ftc.gov.
    (b) Any person filing notification may, in addition to the 
submissions required by this section, submit any

[[Page 582]]

other information or documentary material which such person believes 
will be helpful to the Federal Trade Commission and Assistant Attorney 
General in assessing the impact of the acquisition upon competition.

[43 FR 33548, July 31, 1978, as amended at 66 FR 8695, Feb. 1, 2001]



Sec.  803.2  Instructions applicable to Notification and Report Form.

    (a) The notification required by the act shall be filed by the 
preacquisition ultimate parent entity, or by any entity included within 
the person authorized by such preacquisition ultimate parent entity to 
file notification on its behalf. In the case of a natural person 
required by the act to file notification, such notification may be filed 
by his or her legal representative: Provided however, That 
notwithstanding Sec. Sec.  801.1(c)(2) and 801.2, only one notification 
shall be filed by or on behalf of a natural person, spouse and minor 
children with respect to an acquisition as a result of which more than 
one such natural person will hold voting securities of the same issuer.

    Example: Jane Doe, her husband and minor child collectively hold 
more than 50 percent of the shares of family corporation F. Therefore, 
Jane Doe (or her husband or minor child) is the ``ultimate parent 
entity'' of a ``person'' composed to herself (or her husband or minor 
child) and F; see paragraphs (a)(3), (b) and (c)(2) of Sec.  801.1. If 
corporation F is to acquire corporation X, under this paragraph only one 
notification is to be filed by Jane Doe, her husband and minor child 
collectively.

    (b) Except as provided in paragraph (b)(2) of this section and 
paragraph (c) of this section:
    (1) Items 5-8 of the Notification and Report Form must be 
completed--
    (i) By acquiring persons, with respect to all entities included 
within the acquiring person;
    (ii) By acquired persons, in the case of an acquisition of assets, 
only with respect to the assets to be acquired;
    (iii) By acquired persons, in the case of an acquisition of voting 
securities, with respect to only the issuer whose voting securities are 
being acquired, and all entities controlled by such issuer; and
    (iv) By persons which are both acquiring and acquired persons, 
separately in the manner that would be required of acquiring and 
acquired persons under this paragraph, if different.
    (2) For purposes of items 7 and 8 of the Notification and Report 
Form, the acquiring person shall regard the acquired person in the 
manner described in paragraphs (b)(1) (ii) and (iii) of this section.

    Example: Person ``A'' is comprised of entities separately engaged in 
grocery retailing, auto rental, and coal mining. Person ``B'' is 
comprised of entities separately engaged in wholesale magazine 
distribution, auto rental and book publishing. ``A'' proposes to 
purchase 100 percent of the voting securities of ``B''s book publishing 
subsidiary. For purposes of item 5, under clause (b)(1)(i), ``A'' 
reports the activities of all its entities; under clause (b)(1)(iii), 
``B'' reports only the operations of its book publishing subsidiary. For 
purposes of items 7 and 8, under paragraph (b)(2) of this section, ``A'' 
must regard ``B'' as consisting only of its book publishing subsidiary 
and must disregard the fact that ``A'' and ``B'' are both engaged in the 
auto rental business.

    (c) In response to items 5, 7, and 8 of the Notification and Report 
Form--
    (1) Information shall be supplied only with respect to operations 
conducted within the United States; and
    (2) Information need not be supplied with respect to assets or 
voting securities to be acquired, the acquisition of which is exempt 
from the requirements of the act.
    (d) The term dollar revenues, as used in the Notification and Report 
Form, means value of shipments for manufacturing operations, and sales, 
receipts, revenues, or other appropriate dollar value measure for 
operations other than manufacturing, f.o.b. the plant or establishment 
less returns, after discounts and allowances and excluding freight 
charges and excise taxes. Dollar revenues including delivery may be 
supplied if delivery is an integral part of the sales price. Dollar 
revenues include interplant transfers.
    (e) A person filing notification may incorporate by reference only 
documentary materials required to be filed in response to item 4(a) of 
the Notification and Report Form and annual reports required to be filed 
in response to

[[Page 583]]

item 4(b), which were previously submitted with a filing by the same 
person and which are the most recent versions available; except that 
when the same parties file for a higher notification threshold no more 
than 90 days after having made filings with respect to a lower 
threshold, each party may incorporate by reference in the subsequent 
filing any documents or information in its earlier filing provided that 
the documents and information are the most recent available.

[43 FR 33548, July 31, 1978, as amended at 48 FR 34438, July 29, 1983; 
66 FR 8695, Feb. 1, 2001; 66 FR 23565, May 9, 2001]



Sec.  803.3  Statement of reasons for noncompliance.

    A complete response shall be supplied to each item on the 
Notification and Report Form and to any request for additional 
information pursuant to section 7A(e) and Sec.  803.20. Whenever the 
person filing notification is unable to supply a complete response, that 
person shall provide, for each item for which less than a complete 
response has been supplied, a statement of reasons for noncompliance. 
The statement of reasons for noncompliance shall contain all information 
upon which a person relies in explanation of its noncompliance and shall 
include at least the following:
    (a) Why the person is unable to supply a complete response;
    (b) What information, and what specific documents or categories of 
documents, would have been required for a complete response;
    (c) Who, if anyone, has the required information, and specific 
documents or categories of documents; and a description of all efforts 
made to obtain such information and documents, including the names of 
persons who searched for required information and documents, and where 
the search was conducted. If no such efforts were made, provide an 
explanation of the reasons why, and a description of all efforts 
necessary to obtain required information and documents;
    (d) Where noncompliance is based on a claim of privilege, a 
statement of the claim of privilege and all facts relied on in support 
thereof, including the identity of each document, its author, addressee, 
date, subject matter, all recipients of the original and of any copies, 
its present location, and who has control of it.

[48 FR 34439, July 29, 1983]



Sec.  803.4  Foreign persons refusing to file notification.

    (a) In an acquisition to which Sec.  801.30 does not apply, and in 
which no assets (other than investment assets) located in the United 
States and no voting securities of a United States issuer will be 
acquired directly or indirectly, if a foreign acquired person refuses to 
file notification, then any other person which is a party to the 
acquisition may file notification on behalf of the foreign person. Such 
notification shall constitute the notification required of the foreign 
person by the act and these rules.
    (b) Any person filing on behalf of the foreign person pursuant to 
this section must state in the affidavit required by Sec.  803.5(b) that 
such foreign person has refused to file notification and must explain 
all efforts made by the person filing on behalf of the foreign person to 
obtain compliance with the act and these rules by such foreign person.
    (c) Any notification filed on behalf of a foreign person pursuant to 
this section must contain all information and documentary material 
reasonably available to the person filing on behalf of the foreign 
person which such foreign person would be required to provide. Whenever 
information or documentary material is not reasonably available, the 
person filing on behalf of the foreign person shall so indicate on the 
Notification and Report Form, and need not supply the statement of 
reasons for noncompliance required by Sec.  803.3.
    (d) Any foreign person on whose behalf notification has been filed 
by another person pursuant to this section shall be a ``person filing 
notification'' for purposes of the act and these rules. Nothing in this 
section shall exempt a foreign person from the requirements of the act 
or these rules with respect to a request for additional information or 
an extension of the waiting period pursuant to section 7A(e) and these 
rules.

[[Page 584]]



Sec.  803.5  Affidavits required.

    (a)(1) Section 801.30 acquisitions. For acquisitions to which Sec.  
801.30 applies, the notification required by the act from each acquiring 
person shall contain an affidavit, attached to the front of the 
notification, attesting that the issuer whose voting securities are to 
be acquired has received notice in writing by certified or registered 
mail, by wire or by hand delivery, at its principal executive offices, 
of:
    (i) The identity of the acquiring person;
    (ii) The fact that the acquiring person intends to acquire voting 
securities of the issuer;
    (iii) The specific classes of voting securities of the issuer sought 
to be acquired; and if known, the number of securities of each such 
class that would be held by the acquiring person as a result of the 
acquisition or, if the number is not known, the specific notification 
threshold that the acquiring person intends to meet or exceed; and, if 
designated by the acquiring person, a higher threshold for additional 
voting securities it may hold in the year following the expiration of 
the waiting period;
    (iv) The fact that the acquisition may be subject to the act, and 
that the acquiring person will file notification under the act with the 
Federal Trade Commission and Assistant Attorney General;
    (v) The anticipated date of receipt of such notification under Sec.  
803.10(c); and
    (vi) The fact that the person within which the issuer is included 
may be required to file notification under the act.
    (2) The affidavit required by this paragraph must also state the 
good faith intention of the person filing notification to make the 
acquisition, and, in the case of a tender offer, that the intention to 
make the tender offer has been publicly announced.

    Example: 1. This paragraph permits the tender offeror to file 
notification at any time after the intention to make the tender offer 
has been publicly announced.
    In examples 2-5 assume that one percent of B's shares are valued at 
$15 million.
    2. ``A'' holds 100,000 shares of the voting securities of Company B. 
``A'' has a good faith intention to acquire an additional 900,000 shares 
of Company B's voting securities. ``A'' states in its notice to B, inter 
alia, that as a result of the acquisition it will hold 1,000,000 shares. 
If 1,000,000 shares of Company B represent 20 percent of Company B's 
outstanding voting securities, the statement will be deemed by the 
enforcement agencies a notification for the $100 million threshold.
    3. Company A intends to acquire voting securities of Company B. 
``A'' does not know exactly how many shares it will acquire, but it 
knows it will definitely acquire $51 million worth and may acquire 50 
percent of Company B's shares. ``A''s notice to the acquired person 
would meet the requirements of Sec.  803.5(a)(1)(iii) if it states, 
inter alia, either: ``Company A has a present good faith intention to 
acquire $51 million of the outstanding voting securities of Company B, 
and depending on market conditions, may acquire more of the voting 
securities of Company B and thus designates the 50 percent threshold,'' 
or ``Company A has a present good faith intention to acquire $51 million 
of the outstanding voting securities of Company B, and depending on 
market conditions may acquire 50 percent or more of the voting 
securities of Company B.'' The Commission would deem either of these 
statements as intending to give notice for the 50 percent threshold.
    4. ``A'' states, inter alia, that, ``depending on market conditions, 
it may acquire 100 percent of the shares of B.'' ``A'''s notice does not 
comply with Sec.  803.5 because it does not state an intent to meet or 
exceed any notification threshold. ``A'' 's filing will be considered 
deficient within the meaning of Sec.  803.10(c)(2).
    5. ``A'' states, inter alia, that it has commenced a tender offer 
for ``up to 55 percent of the outstanding voting securities of Company 
B.'' ``A'' 's notice does not comply with Sec.  803.5 because use of the 
term ``up to'' does not state an intent to meet or exceed any 
notification threshold. The filing will therefore be considered 
deficient within the meaning of Sec.  803.10 (c)(2).

    (3) The affidavit required by this paragraph must have attached to 
it a copy of the written notice received by the acquired person pursuant 
to paragraph (a)(1) of this section.
    (b) Non-section 801.30 acquisitions. For acquisitions to which Sec.  
801.30 does not apply, the notification required by the act shall 
contain an affidavit, attached to the front of the notification, 
attesting that a contract, agreement in principle or letter of intent to 
merge or acquire has been executed, and further attesting to the good 
faith intention of

[[Page 585]]

the person filing notification to complete the transaction.

[43 FR 33548, July 31, 1978, as amended at 48 FR 34439, July 29, 1983; 
52 FR 7082, Mar. 6, 1987; 66 FR 8695, Feb. 1, 2001]



Sec.  803.6  Certification.

    (a) The notification required by the act shall be certified:
    (1) In the case of a partnership, by any general partner thereof;
    (2) In the case of a corporation, by any officer or director 
thereof;
    (3) In the case of a person lacking officers, directors, or 
partners, by any individual exercising similar functions;
    (4) In the case of a natural person, by such natural person or his 
or her legal representative;
    (5) In the case of the estate of a deceased natural person, by any 
duly authorized legal representative of such estate.
    (b) Additional information or documentary material submitted in 
response to a request pursuant to section 7A(e) and Sec.  803.20 shall 
be accompanied by a certification in the format appearing at the end of 
the Notification and Report Form, completed in accordance with paragraph 
(a) of this section by the person or individual to whom it was directed.
    (c) In all cases, the certifying individual must possess actual 
authority to make the certification on behalf of the person filing 
notification.

[43 FR 33548, July 31, 1978, as amended at 48 FR 34429, July 29, 1983]



Sec.  803.7  Expiration of notification.

    Notification with respect to an acquisition shall expire 1 year 
following the expiration of the waiting period. If the acquiring 
person's holdings do not, within such time period, meet or exceed the 
notification threshold with respect to which the notification was filed, 
the requirements of the act must thereafter be observed with respect to 
any notification threshold not met or exceeded.

    Example: A files notification that $125 million of the voting 
securities of corporation B are to be acquired. One year after the 
expiration of the waiting period, A has acquired only $95 million of B's 
voting securities. Although Sec.  802.21 will permit ``A'' to purchase 
any amount of B's voting securities short of $100 million within 5 years 
from the expiration of the waiting period, A's holdings may not meet or 
exceed the $100 million notification threshold without ``A'' and ``B'' 
again filing notification and observing a waiting period.

[43 FR 33548, July 31, 1978, as amended at 66 FR 8695, Feb. 1, 2001]



Sec.  803.8  Foreign language documents.

    (a) Whenever at the time of filing a Notification and Report Form 
there is an English language outline, summary, extract or verbatim 
translation of any information or of all or portions of any documentary 
materials in a foreign language required to be submitted by the act or 
these rules, all such English language versions shall be filed along 
with the foreign language information or materials.
    (b) Documentary materials or information in a foreign language 
required to be submitted in responses to a request for additional 
information or documentary material shall be submitted with verbatim 
English language translations, or all existing English language 
versions, or both, as specified in such request.

[48 FR 34440, July 29, 1983]



Sec.  803.9  Filing fee.

    (a) Each acquiring person shall pay the filing fee required by the 
act to the Federal Trade Commission, except as provided in paragraphs 
(b) and (c) of this section. No additional fee is to be submitted to the 
Antitrust Division of the Department of Justice.

    Examples: 1. ``A'' wishes to acquire voting securities issued by B, 
where the greater of the acquisition price and the market price is $64 
million, pursuant to Sec.  801.10. When ``A'' files notification for the 
transaction, it must indicate the $50 million threshold and pay a filing 
fee of $45,000 because the aggregate total amount of the acquisition is 
less than $100 million, but greater than $50 million.
    2. ``A'' acquires $40 million of assets from ``B.'' The parties meet 
the size of person criteria of Section 7A(a)(2)(B), but the transaction 
is not reportable because it does not exceed the $50 million size of 
transaction threshold of that provision. Two months later ``A'' acquires 
additional assets from ``B'' valued at $90 million. Pursuant to the 
aggregation requirements of Sec.  801.13(b)(2)(ii), the aggregate total 
amount of ``B's'' assets that ``A'' will hold as a result of the second 
acquisition is $130 million. Accordingly,

[[Page 586]]

when ``A'' files notification for the second transaction, ``A'' must 
indicate the $100 million threshold and pay a filing fee of $125,000 
because the aggregate total amount of the acquisition is less than $500 
million, but not less than $100 million.
    3. ``A'' acquires $60 million of voting securities issued by B after 
submitting its notification and $45,000 filing fee and indicates the $50 
million threshold. Two years later, ``A'' files to acquire additional 
voting securities issued by B valued at $50 million because it will 
exceed the next higher reporting threshold (see Sec.  801.1(h)). 
Assuming the second transaction is reportable and the value of its 
initial holdings is unchanged (see Sec.  801.13(a)(2) and 801.10(c)), 
the provisions of Sec.  801.13(a)(1) require that ``A'' report that the 
value of the second transaction is $110 million because ``A'' must 
aggregate previously acquired securities in calculating the value of B's 
voting securities that it will hold as a result of the second 
acquisition. ``A'' should pay a filing fee of $125,000.
    4. ``A'' signs a contract with a stated purchase price of $110 
million, subject to adjustments, to acquire all of the assets of ``B.'' 
If the amount of adjustments can be reasonably estimated, the 
acquisition price--as adjusted to reflect that estimate--is determined. 
If the amount of adjustments cannot be reasonably estimated, the 
acquisition price is undetermined. In either case the board or its 
delegee must also determine in good faith the fair market value. (Sec.  
801.10(b) states that the value of an asset acquisition is to be the 
fair market value or the acquisition price, if determined and greater 
than fair market value.) ``A'' files notification and submits a $45,000 
filing fee. ``A''s decision to pay that fee may be justified on either 
of two bases, and ``A'' should submit an attachment to the Notification 
and Report Form explaining the valuation. First, ``A'' may have 
concluded that the acquisition price can be reasonably estimated to be 
$98 million, because of anticipated adjustments--e.g., based on due 
diligence by ``A's'' accounting firm indicating that one third of the 
inventory is not saleable. If fair market value is also determined in 
good faith to be less than $100 million, the $45,000 fee is appropriate. 
Alternatively, ``A'' may conclude that because the adjustments cannot 
reasonably be estimated, acquisition price is undetermined. If so, ``A'' 
would base the valuation on the good faith determination of fair market 
value. The acquiring party's execution of the Certification also attests 
to the good faith valuation of the value of the transaction.
    5. ``A'' contracts to acquire all of the assets of ``B'' for $1 
billion. The assets include hotels, office buildings, and rental retail 
property with a total value of $850 million, all of which are exempted 
by Sec.  802.2. Section 802.2 directs that these assets are exempt from 
the requirements of the act and that reporting requirements for the 
transaction should be determined by analyzing the remainder of the 
acquisition as if it were a separate transaction. Furthermore, Sec.  
801.15(a)(2) states that those exempt assets are never held as a result 
of the acquisition. Accordingly, the aggregate amount of the transaction 
is $150 million. ``A'' will be liable for a filing fee of $125,000, 
rather than $280,000, because the value of the transaction is not less 
than $100 million but less than $500 million. Note, however, that ``A'' 
must include an attachment in its Notification and Report Form setting 
out both the $1 billion total purchase price and the basis for its 
determination that the aggregate total amount of the acquisition under 
the rules is $150 million rather than $1 billion, in accordance with the 
Instructions to the Form.
    6. ``A'' acquires coal reserves from ``B'' valued at $150 million. 
No notification or filing fee is required because the acquisition is 
exempted by Sec.  802.3(b). Three months later, A proposes to acquire 
additional coal reserves from ``B'' valued at $450 million. This 
transaction is subject to the notification requirements of the act 
because the value of the acquisition exceeds the $200 million limitation 
on the exemption in Sec.  802.3(b). As a result of Sec.  
801.13(b)(2)(ii), the prior $150 million acquisition must be added 
because the additional $450 million of coal reserves were acquired from 
the same person within 180 days of the initial acquisition. Because 
aggregating the two acquisitions exceeds the $200 million exemption 
threshold, Sec.  801.15(b) directs that ``A'' will also hold the 
previously exempt $150 million acquisition; thus, the aggregate amount 
held as a result of the $450 million acquisition is $600 million. 
Accordingly, ``A'' must file notification to acquire the coal reserves 
valued at $600 million and pay a filing fee of $280,000.
    7. ``A'' intends to acquire 20 percent of the voting securities of 
B, a non-publicly traded issuer. The agreed upon acquisition price is 
$99 million subject to post-closing adjustments of up to plus or minus 
$2 million. ``A'' estimates that the adjustments will be minus $1 
million. In this example, since ``A'' is able in good faith to 
reasonably estimate the adjustments to the agreed-on price, the 
acquisition price is deemed to be determined and the appropriate filing 
fee threshold is $50 million. Even if the post-closing adjustments cause 
the final price actually paid to exceed $100 million, ``A'' would be 
deemed to hold $98 million in B voting securities as a result of this 
acquisition. Note, however, since the potential acquisition price 
subject to adjustments could have exceeded the $100 million threshold 
(e.g., ``straddles two filing fee thresholds''), an explanation of why 
the lower threshold was indicated should be attached. Also note that any 
additional acquisition by ``A'' of B voting stock (if the value

[[Page 587]]

of the stock currently held by ``A'' is $100 million or more) will cause 
``A'' to cross the $100 million threshold and another filing and the 
appropriate fee will be required.
    8. ``A'' intends to make a cash tender offer for a minimum of 50 
percent plus one share of the voting securities of B, a non-publicly 
traded issuer, but will accept up to 100 percent of the shares if they 
are tendered. There are 12 million shares of B voting stock outstanding 
and the tender offer price is $10 per share. In this instance, since 
there is no cap on the number of shares that can be tendered, the value 
of the transaction will be the value of 100 percent of B's voting 
securities, and ``A'' must pay the $125,000 fee for the $100 million 
filing fee threshold. Note that if the tender offer had been for a 
maximum of 50 percent plus one share the value of the transaction would 
be $60 million, and the appropriate fee would be $45,000, based on the 
$50 million filing fee threshold. This would be true even if the tender 
offer were to be followed by a merger which would be exempt under 
Section 7A(c)(3),

    (b) For a transaction described by Sec.  801.2(d)(2)(iii), the 
parties shall pay only one filing fee. In accordance with Sec.  
801.2(d)(2)(iii), both parties to a consolidation are acquiring and 
acquired persons and must submit a Notification and Report Form where 
the transaction meets the reporting requirements of that act; however, 
only one filing fee is required in connection with such a transaction, 
and is payable by either party to the transaction. The filing fee is 
based on the greater of the two sizes of transaction in the 
consolidation.
    (c) For a reportable transaction in which the acquiring entity has 
two ultimate parent entities, both ultimate parent entities are 
acquiring persons; however, if the responses for both ultimate parent 
entities would be the same for item 5 of the Notification and Report 
Form, only one filing fee is required in connection with the 
transaction.
    (d) Manner of payment. Fees may be paid by United States postal 
money order, bank money order, bank cashier's check, certified check or 
by electronic wire transfer (EWT). The fee must be paid in U.S. 
currency.
    (1) Fees paid by money order or check shall be made payable to the 
``Federal Trade Commission,'' omitting the name or title of any official 
of the Commission, and shall be submitted to the Premerger Notification 
Office of the Federal Trade Commission along with the Notification and 
Report Form.
    (2) Fees paid by EWT shall be deposited to the Treasury's account at 
the New York Federal Reserve Bank. Specific instructions for making EWT 
payments are contained in the Instructions to the Notification and 
Report Form.
    (e) Refunds. Except as provided in this paragraph, no filing fee 
received by the Commission will be returned to the payer and no part of 
the filing fee shall be refunded. The filing fee shall be refunded only 
if the Commission's staff determines, based on the information and 
representations contained in the filing person's notification, that 
premerger notification was not required by the act. Once the 
Commission's staff has determined that the notification was required, 
the filing fee shall not be refunded even if it appears at the time of 
consummation that the transaction does not meet the reporting 
requirements established in the act.

[66 FR 8695, Feb. 1, 2001, as amended at 68 FR 2431, Jan. 17, 2003]



Sec.  803.10  Running of time.

    (a) Beginning of waiting period. The waiting period required by the 
act shall begin on the date of receipt of the notification required by 
the act, in the manner provided by these rules (or, if such notification 
is not completed, the notification to the extent completed and a 
statement of the reasons for such noncompliance in accordance with Sec.  
803.3) from:
    (1) In the case of acquisitions to which Sec.  801.30 applies, the 
acquiring person;
    (2) In the case of the formation of a joint venture or other 
corporation covered by Sec.  801.40, all persons contributing to the 
formation of the joint venture or other corporation that are required by 
the act and these rules to file notification;
    (3) In the case of all other acquisitions, all persons required by 
the act and these rules to file notification.
    (b) Expiration of waiting period. (1) Subject to paragraph (b)(3) of 
this section, for purposes of Section

[[Page 588]]

7A(b)(1)(B), the waiting period shall expire at 11:59 p.m. Eastern Time 
on the 30th (or in the case of a cash tender offer or of an acquisition 
covered by 11 U.S.C. 363(b), the 15th) calendar day (or if Sec.  802.23 
applies, such other day as that section may provide) following the 
beginning of the waiting period as determined under paragraph (a) of 
this section, unless extended pursuant to Section 7A(e) and Sec.  
803.20, or Section 7A(g)(2), or unless terminated pursuant to Section 
7A(b)(2) and Sec.  803.11.
    (2) Unless further extended pursuant to Section 7A(g)(2), or 
terminated pursuant to Section 7A(b)(2) and Sec.  803.11, any waiting 
period which has been extended pursuant to Section 7A(e)(2) and Sec.  
803.20 shall, subject to paragraph (b)(3) of this section, expire at 
11:59 p.m. Eastern Time--
    (i) On the 30th (or, in the case of a cash tender offer or of an 
acquisition covered by 11 U.S.C. 363(b), the 10th) day following the 
date of receipt of all additional information or documentary material 
requested from all persons to whom such requests have been directed (or, 
if a request is not fully complied with, the information and documentary 
material submitted and a statement of the reasons for such noncompliance 
in accordance with Sec.  803.3), by the Federal Trade Commission or 
Assistant Attorney General, whichever requested additional information 
or documentary material, at the office designated in paragraph (c) of 
this section, or
    (ii) As provided in paragraph (b)(1) of this section, whichever is 
later.
    (3) If any waiting period would expire on a Saturday, Sunday, or 
legal public holiday (as defined in 5 U.S.C. 6103(a)) the waiting period 
shall be extended to 11:59 p.m. Eastern Time of the next regular 
business day.
    (c)(1) Date of receipt and means of delivery. For purposes of this 
section, the date of receipt shall be the date on which delivery is 
effected to the designated offices (Premerger Notification Office, Room 
303, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, 
DC 20580, and Director of Operations and Merger Enforcement, Antitrust 
Division, Department of Justice, Patrick Henry Building, 601 D Street, 
NW, Room 10013, Washington, DC 20530) during normal business 
hours. Delivery effected after 5:00 p.m. Eastern Time on a regular 
business day, or at any time on any day other than a regular business 
day, shall be deemed effected on the next following regular business 
day. Delivery should be effected directly to the designated offices, 
either by hand or by certified or registered mail. If delivery of all 
required filings to all offices required to receive such filings is not 
effected on the same date, the date of receipt shall be the latest of 
the dates on which delivery is effected.

    Example: In an acquisition other than a tender offer, assume that 
requests for additional information are issued to both the acquiring and 
acquired persons on the 26th day of the waiting period. One person 
submits the additional information on the 35th day, while the other 
responds on the 44th day. Under this section, the waiting period expires 
thirty days following the last receipt of additional information, that 
is, it expires on the 74th day (unless that day is a Saturday, Sunday or 
legal public holiday).

    (2) Deficient filings. If notification or a response to a request 
for additional information or documentary material received by the 
Commission or Assistant Attorney General does not comply with these 
rules, the Commission or the Assistant Attorney General shall promptly 
notify the person filing such notification or response of the 
deficiencies in such filing, and the date of receipt shall be the date 
on which a filing which complies with these rules is received.

[43 FR 33548, July 31, 1978; 43 FR 36054, Aug. 15, 1978, as amended at 
52 FR 7083, Mar. 6, 1987; 66 FR 8696, Feb. 1, 2001]



Sec.  803.11  Termination of waiting period.

    (a) Except as provided in paragraph (c) of this section, no waiting 
period shall be terminated pursuant to section 7A(b)(2) unless--
    (1) All notifications required to be filed with respect to the 
acquisition by the act and these rules (or, if such notification is not 
completed, the notification to the extent completed and a statement of 
the reasons for such noncompliance in accordance with Sec.  803.3) have 
been received,
    (2) It has been determined that no additional information or 
documentary

[[Page 589]]

material pursuant to section 7A(e) and Sec.  803.20 will be requested, 
or, if such additional information or documentary material has been 
requested, it (or, if a request is not fully complied with, the 
information and documentary material submitted and a statement of the 
reasons for such noncompliance in accordance with Sec.  803.3) has been 
received, and
    (3) The Federal Trade Commission and the Assistant Attorney General 
have concluded that neither intends to take any further action within 
the waiting period.
    (b) Any request for additional information or documentary material 
pursuant to section 7A(e) and Sec.  803.20 shall constitute a denial of 
all pending requests for termination of the waiting period.
    (c) The Federal Trade Commission and the Assistant Attorney General 
may in their discretion terminate a waiting period upon the written 
request of any person filing notification or, notwithstanding paragraph 
(a) of this section, sua sponte. A request for termination of the 
waiting period shall be sent to the offices designated in Sec.  
803.10(c). Termination shall be effective upon notice to any requesting 
person by telephone, and such notice shall be given as soon as possible. 
Such notice shall also be confirmed in writing to each person which has 
filed notification, and notice thereof shall be published in the Federal 
Register in accordance with section 7A(b)(2). The Federal Trade 
Commission and the Assistant Attorney General also may use other means 
to make the termination public, prior to publication in the Federal 
Register in a manner that will make the information equally accessible 
to all members of the public.

[43 FR 33548, July 31, 1978, as amended at 54 FR 21427, May 18, 1989]



Sec.  803.20  Requests for additional information or documentary material.

    (a)(1) Persons and individuals subject to request. Pursuant to 
section 7A(e)(1), the submission of additional information or 
documentary material relevant to the acquisition may be required from 
one or more persons required to file notification, and, with respect to 
each such person, from one or more entities included therein, or from 
one or more officers, directors, partners, agents, or employees thereof, 
if so required by the same request.

    Example: A request for additional information may require a 
corporation and, in addition, a named officer or employee to provide 
certain information or documents, if both the corporation and the 
officer or employee are named in the same request. See subparagraph 
(b)(3) of this section.

    (2) All the information and documentary material required to be 
submitted pursuant to a request under paragraph (a)(1) of this section 
shall be supplied to the Commission or to the Assistant Attorney 
General, whichever made such request, at such location as may be 
designated in the request, or, if no such location is designated, at the 
office designated in Sec.  803.10(c). If such request is not fully 
complied with, a statement of reasons for noncompliance pursuant to 
Sec.  803.3 shall be provided for each item or portion of such request 
which is not fully complied with.
    (b)(1) Who may require submission. A request for additional 
information or documentary material with respect to an acquisition may 
be issued by the Federal Trade Commission or its designee, or by the 
Assistant Attorney General or his or her designee, but not by both to 
the same person, any entities included therein, or any officers, 
directors, partners, agents, or employees of that person.
    (2) When request effective. A request for additional information or 
documentary material shall be effective--
    (i) In the case of a written request, upon receipt of the request by 
the ultimate parent entity of the person to which the request is 
directed (or, if another entity included within the person filed 
notification pursuant to Sec.  803.2(a), then by such entity), within 
the original 30-day (or, in the case of a cash tender offer or of an 
acquisition covered by 11 U.S.C. 363(b), 15-day) waiting period (or, if 
Sec.  802.23 applies, such other period as that section provides); or
    (ii) In the case of a written request, upon notice of the issuance 
of such request to the person to which it is directed within the 
original 30-day (or, in the case of a cash tender offer or of an 
acquisition covered by 11 U.S.C. 363(b),

[[Page 590]]

15-day) waiting period (or, if Sec.  802.23 applies, such other period 
as that section provides), provided that written confirmation of the 
request is mailed to the person to which the request is directed within 
the original 30-day (or, in the case of a cash tender offer or of an 
acquisition covered by 11 U.S.C. 363(b), 15-day) waiting period (or, if 
Sec.  802.23 applies, such other period as that section provides). 
Notice to the person to which the request is directed may be given by 
telephone or in person. The person filing notification shall keep a 
designated individual reasonably available during normal business hours 
throughout the waiting period at the telephone number supplied in the 
Notification and Report Form. Notice of a request for additional 
information or documentary material need be given by telephone only to 
that individual or to the individual designated in accordance with 
paragraph (b)(2)(iii) of this section. Upon the request of the 
individual receiving notice of the issuance of such a request, the full 
text of the request will be read. The written confirmation of the 
request shall be mailed to the ultimate parent entity of the person 
filing notification, or if another entity within the person filed 
notification pursuant to Sec.  803.2(a), then to such entity.
    (iii) When the individual designated in accordance with paragraph 
(b)(2)(ii) of this section is not located in the United States, the 
person filing notification shall designate an additional individual 
located within the United States to be reasonably available during 
normal business hours throughout the waiting period through a telephone 
number supplied on the certification page of the Notification and Report 
Form. This individual shall be designated for the limited purpose of 
receiving notification of the issuance of requests for additional 
information or documentary material in accordance with the procedure 
described in paragraph (b)(2)(ii) of this section.
    (3) Requests to natural persons. A request addressed to an 
individual, requiring that he or she submit additional information or 
documentary material, shall be transmitted to the person filing 
notification of which the individual is an ultimate parent entity, 
officer, director, partner, agent or employee, and shall be effective as 
to that individual when effective as to the person filing notification 
pursuant to paragraph (b)(2) of this section. A written copy of the 
request shall also be delivered to the individual by hand, or by 
registered or certified mail at his or her home or business address.

    Example: A designee of the Federal Trade Commission sends, by 
certified letter which is received within the 30-day waiting period, a 
written request for additional information to corporation W, the 
ultimate parent entity within a person which filed notification. The 
request is effective under clause (b)(2)(i). If the letter also 
addressed a request for documentary material to the secretary of 
corporation W, a named individual, under paragraph (b)(3), the request 
would likewise be effective as to the individual upon receipt of the 
letter by W. In the latter case, the Federal Trade Commission also would 
send a copy of the request to the Secretary of the corporation at his or 
her home or business address.

    (c) Waiting period extended. (1) During the time period when a 
request for additional information or documentary material remains 
outstanding to any person other than either:
    (i) In the case of a tender offer, the person whose voting 
securities are sought to be acquired by the tender offeror (or any 
officer, director, partner, agent or employee thereof), or
    (ii) In the case of an acquisition covered by 11 U.S.C. 363(b), the 
acquired person, the waiting period shall remain in effect, even though 
the waiting period would have expired (see Sec.  803.10(b)) if no such 
request had been made.
    (2) A request for additional information or documentary material to 
any person other than either:
    (i) In the case of a tender offer, the person whose voting 
securities are being acquired pursuant to the tender offer (or any 
officer, director, partner, agent or employee thereof), or
    (ii) In the case of an acquisition covered by 11 U.S.C. 363(b), the 
acquired person, shall in every instance extend the waiting period for a 
period of 30 (or, in the case of a cash tender offer or of an 
acquisition covered by 11 U.S.C. 363(b), 10) calendar days from the date 
of receipt (as determined under Sec.  803.10) of the additional 
information or documentary material requested.


[[Page 591]]


    Example: Acquiring person ``A'' makes a non-cash tender offer for 
voting securities of corporation ``X'', and files notification. Under 
Sec.  801.30, the waiting period begins upon filing by ``A,'' and ``X'' 
must file within 15 days thereafter (10 days if it were a cash tender 
offer). Assume that before the end of the waiting period, the Assistant 
Attorney General issues a request for additional information to ``A'' 
and ``X.'' Since the transaction is a non-cash tender offer, the waiting 
period is extended for 30 days (10 days if it were a cash tender offer) 
beyond the date on which ``A'' responds. Note that under Sec.  803.21, 
even though the waiting period is not affected by the second request to 
``X'' or by ``X'' supplying the requested information, ``X'' is obliged 
to respond to the request within a reasonable time. Nevertheless, the 
Federal Trade Commission and Assistant Attorney General could, 
notwithstanding the pendency of the request for additional information, 
terminate the waiting period sua sponte pursuant to Sec.  803.11(c).

    (d)(1) Identification of requests. Every request for additional 
information or documentary material shall be clearly identified as such, 
whether communicated in person, by telephone or in writing, and shall 
clearly identify the person, entity or entities, or individual(s) to 
which it is addressed.
    (2) Request for clarification. No request for clarification or 
amplification of a response to any item on the Notification and Report 
Form, whether communicated in person, by telephone or in writing, shall 
be considered a request for additional information or documentary 
material within the meaning of section 7A(e) and this section.

[43 FR 33548, July 31, 1978, as amended at 48 FR 34441, July 29, 1983; 
66 FR 8697, Feb. 1, 2001; 68 FR 2431, Jan. 17, 2003]



Sec.  803.21  Additional information shall be supplied within reasonable time.

    All additional information or documentary material requested 
pursuant to section 7A(e) and Sec.  803.20 (or, if such request is not 
fully complied with, the information or documentary material submitted 
and a statement of the reasons for such noncompliance in accordance with 
Sec.  803.3) shall be supplied within a reasonable time.



Sec.  803.30  Formal and informal interpretations of requirements under 
the Act and the rules.

    (a) The Commission staff may consider requests for formal or 
informal interpretations as to the obligations under the act and these 
rules of any party to an acquisition. A request for a formal 
interpretation shall be made in writing to the offices designated in 
Sec.  803.10(c), and shall state: (1) all facts which the applicant 
believes to be material, (2) the reasons why the requirements of the act 
are or may be applicable and (3) the question(s) that the applicant 
wishes resolved. The Commission staff may, in its discretion, render a 
formal or informal response to any request, however made, or may decline 
to render such advice.
    (b) In the sole discretion of the staff, any request for 
interpretation may be referred to the Commission.
    (c) Formal interpretations by the Commission staff or by the 
Commission shall be rendered with the concurrence of the Assistant 
Attorney General or his or her designee.
    (d) Any formal interpretation shall be without prejudice to the 
right of either the Commission or the Assistant Attorney General to 
rescind any such interpretation rendered pursuant to this section. In 
the event of such rescission, the party which requested the 
interpretation shall be so notified in writing.
    (e) The Commission shall publish a summary of formal interpretations 
by the Commission, and any rescissions thereof, in the Federal Register.



Sec.  803.90  Separability.

    If any provision of the rules in this subchapter (H) (including the 
Notification and Report Form) or the application of any such provision 
to any person or circumstances is held invalid, neither the other 
provisions of the rules nor the application of such provision to other 
persons or circumstances shall be affected thereby.

[[Page 592]]

                          Appendix to Part 803
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[GRAPHIC] [TIFF OMITTED] TR17JA03.013


[[Page 606]]


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[68 FR 2431, Jan. 17, 2003]

[[Page 607]]



             SUBCHAPTER I_FAIR DEBT COLLECTION PRACTICES ACT





PART 901_PROCEDURES FOR STATE APPLICATION FOR EXEMPTION FROM THE 
PROVISIONS OF THE ACT--Table of Contents




Sec.
901.1 Purpose.
901.2 Application.
901.3 Supporting documents.
901.4 Criteria for determination.
901.5 Public notice of filing.
901.6 Exemption from requirements.
901.7 Adverse determination.
901.8 Revocation of exemption.

    Authority: Pub. L. 95-109, 91 Stat. 874, 15 U.S.C. 1692o; 5 U.S.C. 
552.

    Source: 44 FR 21005, Apr. 9, 1979, unless otherwise noted.



Sec.  901.1  Purpose.

    This part establishes procedures and criteria whereby States may 
apply to the Federal Trade Commission for exemption of a class of debt 
collection practices within the applying State from the provisions of 
the Fair Debt Collection Practices Act as provided in section 817 of the 
Act, 15 U.S.C. 1692o.



Sec.  901.2  Application.

    Any State may apply to the Commission pursuant to the terms of this 
Rule for a determination that, under the laws of that State, \1\ any 
class of debt collection practices \2\ within that State is subject to 
requirements that are substantially similar to, or provide greater 
protection for consumers than, those imposed under sections 803 through 
812 of the Act, and that there is adequate provision for State 
enforcement of such requirements. The application shall be in writing, 
addressed to the Commission, signed by the Governor, Attorney General or 
State official having primary enforcement or responsibility under the 
State law which is applicable to the class of debt collection practices, 
and shall be supported by the documents specified herein.
---------------------------------------------------------------------------

    \1\ Any reference to State law herein includes a reference to any 
regulations that implement State law and formal interpretations thereof 
by a court of competent jurisdiction or duly authorized agency of that 
State.
    \2\ As applicable, references to ``class of debt collection 
practices'' in this rule include one or more such classes of debt 
collection practices.
---------------------------------------------------------------------------



Sec.  901.3  Supporting documents.

    The application shall be accompanied by the following, which may be 
submitted in paper or electronic form:
    (a) A copy of the full text of the State law that is claimed to 
contain requirements substantially similar to those imposed under 
sections 803 through 812 of the Act, or to provide greater protection to 
consumers than sections 803 through 812 of the Act, regarding the class 
of debt collection practices within that State.
    (b) A comparison of each provision of sections 803 through 812 of 
the Act with the corresponding provision of the State law, together with 
reasons supporting the claim that the corresponding provisions of the 
State law are substantially similar to or provide greater protection to 
consumers than provisions of sections 803 through 812 of the Act and an 
explanation as to why any differences between the State and federal law 
are not inconsistent with the provisions of sections 803 through 812 of 
the Act and do not result in a diminution in the protection otherwise 
afforded consumers; and a statement that no other State laws (including 
administrative or judicial interpretations) are related to, or would 
have an effect upon, the State law that is being considered by the 
Commission in making its determination.
    (c) A copy of the full text of the State law that provides for 
enforcement of the State law referred to in paragraph (a) of this 
section.
    (d) A comparison of the provisions of the State law that provides 
for enforcement with the provisions of section 814 of the Act, together 
with reasons supporting the claim that such State law provides for 
administrative enforcement of the State law referred to in paragraph (a) 
of this section that is substantially similar to, or more extensive 
than, the enforcement provided under section 814 of the Act.

[[Page 608]]

    (e) A statement identifying the office designated or to be 
designated to administer the State law referred to in paragraph (a) of 
this section, together with complete information regarding the fiscal 
arrangements for administrative enforcement (including the amount of 
funds available or to be provided), the number and qualifications of 
personnel engaged or to be engaged in enforcement, and a description of 
the procedures under which such State law is to be administratively 
enforced. The statement should also include reasons to support the claim 
that there is adequate provision for enforcement of such State law.

[44 FR 21005, Apr. 9, 1979, as amended at 64 FR 34533, June 28, 1999]



Sec.  901.4  Criteria for determination.

    The Commission will consider the criteria set forth below, and any 
other relevant information, in determining whether the law of a State is 
substantially similar to, or provides greater protection to consumers 
than, the provisions of sections 803 through 812 of the Act regarding 
the class of debt collection practices within that State, and whether 
there is adequate provision for State enforcement of such law. In making 
that determination, the Commission primarily will consider each 
provision of the State law in comparison with each corresponding 
provision in sections 803 through 812 of the Act, and not the State law 
as a whole in comparison with the Act as a whole.
    (a) In order for provisions of State law to be substantially similar 
to, or provide greater protection to consumers than the provisions of 
sections 803 through 812 of the Act, the provisions of State law \3\ at 
least shall provide that:
---------------------------------------------------------------------------

    \3\ This subsection is not be construed as indicating that the 
Commission would consider adversely any additional requirements of State 
law that are not inconsistent with the purpose of the Act or the 
requirements imposed under sections 803 through 812 of the Act.
---------------------------------------------------------------------------

    (1) Definitions and rules of construction, as applicable, import the 
same meaning and have the same application as those prescribed by 
sections 803 through 812 of the Act.
    (2) Debt collectors provide all of the applicable notifications 
required by the provisions of sections 803 through 812 of the Act, with 
the content and in the terminology, form, and time periods prescribed by 
this part pursuant to sections 803 through 812; however, required 
references to State law may be substituted for the references to Federal 
law required in this part. Notification requirements under State law in 
additional circumstances or with additional detail that do not frustrate 
any of the purposes of the Act may be determined by the Commission to be 
consistent with sections 803 through 812 of the Act;
    (3) Debt Collectors take all affirmative actions and abide by 
obligations substantially similar to, or more extensive than, those 
prescribed by sections 803 through 812 of the Act under substantially 
similar or more stringent conditions and within the same or more 
stringent time periods as are prescribed in sections 803 through 812 of 
the Act;
    (4) Debt Collectors abide by the same or more stringent prohibitions 
as are prescribed by sections 803 through 812 of the act;
    (5) Obligations or responsibilities imposed on consumers are no more 
costly, lengthy, or burdensome relative to consumers exercising any of 
the rights or gaining the benefits of the protections provided in the 
State law than corresponding obligations or responsibilities imposed on 
consumers in sections 803 through 812 of the act.
    (6) Consumers' rights and protections are substantially similar to, 
or more favorable than, those provided by sections 803 through 812 of 
the Act under conditions or within time periods that are substantially 
similar to, or more favorable to consumers than, those prescribed by 
sections 803 through 812 of the Act.
    (b) In determining whether provisions for enforcement of the State 
law referred to in Sec.  901.3(a) are adequate, consideration will be 
given to the extent to which, under State law, provision is made for 
administrative enforcement, including necessary facilities, personnel, 
and funding.

[44 FR 21005, Apr. 9, 1979, as amended at 64 FR 34533, June 28, 1999]

[[Page 609]]



Sec.  901.5  Public notice of filing.

    In connection with any application that has been filed in accordance 
with the requirements of Sec. Sec.  901.2 and 901.3 of this rule and 
following initial review of the application, a notice of such filing 
shall be published by the Commission in the Federal Register, and a copy 
of such application shall be made available for examination by 
interested persons during business hours at the Federal Trade 
Commission, Public Reference Room, Room 130. A period of time shall be 
allowed from the date of such publication for interested parties to 
submit written comments to the Commission regarding that application.



Sec.  901.6  Exemption from requirements.

    If the Commission determines on the basis of the information before 
it that, under the law of a State, a class of debt collection practices 
is subject to requirements substantially similar to, or that provide 
greater protection to consumers than, those imposed under sections 803 
through section 812 and 814 of the Act, and that there is adequate 
provision for State enforcement, the Commission will exempt the class of 
debt collection practices in that State from the requirements of 
sections 803 through 812 and section 814 of the Act in the following 
manner and subject to the following conditions:
    (a) Notice of the exemption shall be published in the Federal 
Register, and the Commission shall furnish a copy of such notice to the 
State official who made application for such exemption, to each Federal 
authority responsible for administrative enforcement of the requirements 
of sections 803 through 812 of the Act, and to the Attorney General of 
the United States. Any exemption granted shall be effective 90 days 
after the date of publication of such notice in the Federal Register.
    (b) The appropriate official of any State that receives an exemption 
shall inform the Commission in writing within 30 days of any change in 
the State laws referred to in Sec.  901.3 (a) and (c). The report of any 
such change shall contain copies of the full text of that change, 
together with statements setting forth the information and opinions 
regarding that change that are specified in Sec.  901.3 (b) and (d). The 
appropriate official of any State that has received such an exemption 
also shall file with the Commission from time to time such reports as 
the Commission may require.
    (c) The Commission shall inform the appropriate official of any 
State that receives such an exemption of any subsequent amendments of 
the Act (including the Commission's formal advisory opinions, and 
informal staff interpretations issued by an authorized official or 
employee of the Federal Trade Commission) that might necessitate the 
amendment of State law for the exemption to continue.
    (d) No exemption shall extend to the civil liability provisions of 
section 813 of the Act. After an exemption is granted, the requirements 
of the applicable State law shall constitute the requirements of 
sections 803 through 812 of the Act, except to the extent such State law 
imposes requirements not imposed by the Act or this part.



Sec.  901.7  Adverse determination.

    (a) If, after publication of a notice in the Federal Register as 
provided under Sec.  901.5, the Commission finds on the basis of the 
information before it that it cannot make a favorable determination in 
connection with the application, the Commission shall notify the 
appropriate State official of the facts upon which such findings are 
based and shall afford that State authority a reasonable opportunity to 
demonstrate or achieve compliance.
    (b) If, after having afforded the State authority such opportunity 
to demonstrate or achieve compliance, the Commission finds on the basis 
of the information before it that it still cannot make a favorable 
determination in connection with the application, the Commission shall 
publish in the Federal Register a notice of its determination regarding 
the application and shall furnish a copy of such notice to the State 
official who made application for such exemption.



Sec.  901.8  Revocation of exemption.

    (a) The Commission reserves the right to revoke any exemption 
granted under the provisions of this rule, if at

[[Page 610]]

any time it determines that the State law does not, in fact, impose 
requirements that are substantially similar to, or that provide greater 
protection to applicants than, those imposed under sections 803 through 
812 of the Act or that there is not, in fact, adequate provision for 
State enforcement.
    (b) Before revoking any such exemption, the Commission shall notify 
the appropriate State official of the facts or conduct that, in the 
Commission's opinion, warrants such revocation, and shall afford that 
State such opportunity as the Commission deems appropriate in the 
circumstances to demonstrate or achieve compliance.
    (c) If, after having been afforded the opportunity to demonstrate or 
achieve compliance, the Commission determines that the State has not 
done so, notice of the Commission's intention to revoke such exemption 
shall be published in the Federal Register. A period of time shall be 
allowed from the date of such publication for interested persons to 
submit written comments to the Commission regarding the intention to 
revoke.
    (d) If such exemption is revoked, notice of such revocation shall be 
published by the Commission in the Federal Register, and a copy of such 
notice shall be furnished to the appropriate State official, to the 
Federal authorities responsible for enforcement of the requirements of 
the Act, and to the Attorney General of the United States. The 
revocation shall become effective, and the class of debt collection 
practices affected within that State shall become subject to the 
requirements of sections 803 through 812 of the Act, 90 days after the 
date of publication of the notice in the Federal Register.

                        PARTS 902	999 [RESERVED]

[[Page 611]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 613]]

            Material Approved for Incorporation by Reference

                     (Revised as of January 1, 2004)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR Part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


16 CFR (PARTS 150-999)

CONSUMER PRODUCT SAFETY COMMISSION
                                                                  16 CFR


American Petroleum Institute (API)

  1220 L Street, NW., Washington, DC 20005
API Publication 1509, Thirteenth Edition, January,                311.14
  1995, Engine Oil Licensing and Certification 
  System.


American Society of Mechanical Engineers

  Three Park Avenue, New York, NY 10016-5990; 
  Telephone: (800) THE-ASME
ASME A112.18.1M-1989, Plumbing Fixture Fittings...                 305.5
ASME A112.19.2M-1990, Vitreous China Plumbing                      305.5
  Fixtures.


American Society for Testing and Materials

  100 Barr Harbor Drive, West Conshohocken, PA 
  19428-2959, Telephone (610) 832-9585, FAX (610) 
  832-9555
ASTM C 177-85 ``Standard Test Method for Steady-                460.5(a)
  State Heat Flux Measurements and Thermal 
  Transmission Properties by Means of the Guarded-
  Hot-Plate Apparatus,'' approved October 22, 
  1985, published December 1985.
ASTM C 177-85 (Reapproved 1993) ``Standard Test                    460.5
  Method for Steady-State Heat Flux Measurements 
  and Thermal Transmission Properties by Means of 
  the Guarded-Hot-Plate Apparatus.''.
ASTM C 236-87 ``Standard Test Method for Steady-   460.5(a), (a)(2), (b) 
  State Thermal Performance of Building Assemblies            and (d)(1)
  by Means of a Guarded Hot Box,'' approved July 
  31, 1987, published October 1987.
ASTM C 236-89 (Reapproved 1993) ``Standard Test                    460.5
  Method for Steady-State Thermal Performance of 
  Building Assemblies by Means of a Guarded Hot 
  Box.''.
ASTM C 518-85 ``Standard Test Method for Steady-                460.5(a)
  State Heat Flux Measurements and Thermal 
  Transmission Properties by Means of the Heat 
  Flow Meter Apparatus,'' approved October 22, 
  1985, published December 1985.
ASTM C 518-91 ``Standard Test Method for Steady-                   460.5
  State Heat Flux Measurements and Thermal 
  Transmission Properties by Means of the Heat 
  Flow Meter Apparatus.''.
ASTM C 739-88 ``Standard Specification for                   460.5(a)(2)
  Cellulosic Fiber (Wood-Base) Loose-Fill Thermal 
  Insulation,'' approved October 25, 1988, 
  published April 1989.
ASTM C 739-91 ``Standard Specification for                         460.5
Cellulosic Fiber (Wood-Base) Loose-Fill Thermal 
[[Page 614]]''.

ASTM C 976-82 ``Standard Test Method for Thermal   460.5(a), (a)(2), (b) 
  Performance of Building Assemblies by Means of a            and (d)(1)
  Calibrated Hot Box,'' approved November 11, 
  1982, published April 1983.
ASTM C 976-90 ``Standard Test Method for Thermal                   460.5
  Performance of Building Assemblies by Means of a 
  Calibrated Hot Box''.
ASTM C 1045-85 ``Standard Test Method for                       460.5(a)
  Calculating Thermal Transmission Properties from 
  Steady-State Heat Flux Measurements,'' approved 
  October 22, 1985, published December 1985.
ASTM C 1045-90 ``Standard Test Method for                          460.5
  Calculating Thermal Transmission Properties from 
  Steady-State Heat Flux Measurements''.
ASTM C 1114-95 ``Standard Test Method for Steady-                  460.5
  State Thermal Transmission Properties by Means 
  of the Thin-Heater Apparatus.''.
ASTM D 1945-91, Standard Test Method for Analysis                 309.10
  of Natural Gas by Gas Chromatography.
ASTM D 1946-90, Standard Practice for Analysis of                 309.10
  Reformed Gas by Gas Chromatography.
ASTM D 2699-92, Standard Test Method for Knock                     306.0
  Characteristics of Motor Fuels by the Research 
  Method.
ASTM D 2700-92, Standard Test Method for Knock                     306.0
  Characteristics of Motor and Aviation Fuels by 
  the Motor Method.
ASTM D 4814-92c, Standard Specification for                        306.0
  Automotive Spark-Ignition Engine Fuel.
ASTM D 5489-96c, Standard Guide for Care Symbols                423.8(g)
  for Care Instructions on Textile Products.


International Organization for Standardization (ISO)

  c/o American National Standards Institute, 25 
  West 43rd Street, Fourth Floor, New York, NY 
  10036
ISO 2076:1999(E): ``Textiles--Man-made Fibres--                    303.7
  Generic Names''.


Society of Automotive Engineers

  485 Lexington Avenue, New York, New York 10017
Surface Vehicle Recommended Practice SAE J1634-                   309.22
  1993-05-20, Electric Vehicle Energy Consumption 
  and Range Test Procedure.

[[Page 615]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2004)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2 [Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)

[[Page 616]]

    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

[[Page 617]]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)

[[Page 618]]

      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

[[Page 619]]

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

[[Page 620]]

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)

[[Page 621]]

      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)

[[Page 622]]

         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)

[[Page 623]]

      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)

[[Page 624]]

       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)

[[Page 625]]

       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 626]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

[[Page 627]]

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)

[[Page 628]]

       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 629]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 630]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)

[[Page 631]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1599)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)

[[Page 632]]

         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 633]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2004)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 634]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 635]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 636]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 637]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General

[[Page 638]]

  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A

[[Page 639]]

  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
   Commission
[[Page 640]]

Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV

[[Page 641]]

Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 643]]



List of CFR Secitons Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected 1949-1963, 1964-1972, 1973-1985, and 1986-2000,'' published in 
11 separate volumes.

                                  2001

16 CFR
                                                                   66 FR
                                                                    Page
Chapter I
2 Authority citation revised8721..................................
    Technical correction20527.....................................
2.20 (Subpart B) Added; interim8721...............................
2.41 (a) amended; interim17628....................................
3.12 (a) revised; interim17628....................................
    (a)(1) corrected20527.........................................
3.21 (b) amended; interim17628....................................
3.22 (b) revised; (c) amended; interim17628.......................
3.24 (a)(2) amended; interim17628.................................
3.25 (c) revised; interim17628....................................
    (c) revised64143..............................................
3.31 (b)(3) added; (c)(4)(i) introductory text revised; 
        (c)(4)(iii) removed; interim17628.........................
    (b)(3) corrected20527.........................................
3.33 (a) amended; interim17629....................................
3.34 (c) amended and heading revised; interim17629................
3.36 Revised; interim17629........................................
    (a) corrected20527............................................
3.39 (a) introductory text amended; interim17629..................
    (a) corrected20527............................................
    (a) introductory text and (1) revised; (a)(2) amended64143....
3.42 (c)(10) amended; (c)(11) redesignated as (c)(12); new (c)(11) 
        added; interim17629.......................................
3.43 (b) revised; interim17629....................................
    (b)(1) introductory text and (2) corrected20527...............
3.44 (c) amended; interim17630....................................
3.45 Revised; interim17630........................................
    (b)(2) and (d) corrected20527.................................
3.46 (b)(7) and (c)(4) revised; interim17631......................
3.51 (c)(1) amended; (c)(3) removed; interim17631.................
3.52 Revised; interim17631........................................
    (b), (e), (f)(2) and (j) corrected20527.......................
4 Authority citation revised17632.................................
4.1 (b)(1)(iv) note removed13645..................................
    (a)(2)(ii) revised64143.......................................
4.2 Revised; interim17632.........................................
    (c)(1), (2), (e), (f)(1), (2) and (g) corrected20527..........
4.3 (d) added; interim17633.......................................
4.4 (a)(3) and (c) revised; (b) amended; interim17633.............
    (a)(3) and (b) corrected20527.................................
4.8 (c), (e)(1), (g) and (h) amended64144.........................
4.9 (b)(10)(xiii) and (xiv) redesignated as (b)(10)(xiv) and (xv); 
        new (b)(10)(xiii) added; interim17633.....................
    (a)(4)(i) amended64144........................................
4.10 (g)(1) revised; interim17633.................................
4.11 (a)(2)(i)(A)(1), (2), (3), (ii)(A)(1) and (2) redesignated as 
        (a)(2)(i)(A)(1), (2), (3), (ii)(A)(1) and (2); 
        (a)(1)(i)(A), (E), (iii)(A) through (D), (iv)(A), (B), (C) 
        and new (a)(2)(i)(A)(1) amended64144......................
4.13 (i)(2)(i) and (c) amended64144...............................
6 Authority citation revised51863.................................
6.101 Amended51863................................................
6.103 Amended51863................................................
6.152 Added51863..................................................

[[Page 644]]

6.170 (b) amended; (d)(3) and (i)(2) revised51864.................
305 Energy efficiency ranges19389, 40110..........................
    Technical correction59050.....................................
305.5 (a) revised27858............................................
305.6 (a) revised27858............................................
305.9 (a) revised27858............................................
305 Appendix C1 revised; eff. 3-22-0249531........................
    Appendixes H and I amended49531...............................
    Appendixes A1, A2 and A3 revised; eff. 2-19-0257868...........
    Appendixes A4 and A5 revised; eff. 2-19-0257869...............
    Appendixes A6 and A7 revised; eff. 2-19-0257870...............
    Appendixes A8, B1 and B2 revised; eff. 2-19-0257871...........
       Appendix B3 revised; Appendixes H and I amended; eff. 2-19-
        0257872.........................................................
    Appendix A2 corrected; eff. 2-19-0263749......................
801 Authority citation revised8687................................
801.1 (h), (j) and (m) revised; interim8687.......................
    (j) revised; interim23565.....................................
801.2 (d) Examples 2 and 3 revised; interim8688...................
801.4 (b) Examples 1 and 5 revised; interim8688...................
801.10 Example revised; interim8688...............................
801.11 (b) introductory text, example, (e)(2)(ii) and Examples 1 
        through 4 revised; interim8688............................
801.12 Heading revised; (c) and (d) removed; interim8689..........
801.13 (a) Examples 1, 4, and (b)(2)(ii) revised; interim8689.....
       801.14 Introductory text and (b) Examples 1 and 2 revised; 
        interim8689.....................................................
801.15 Introductory text and (c) Examples 1, 2, 4, 6 and 7 
        revised; interim8689......................................
801.20 Examples 1 and 2 revised; interim8690......................
801.21 Introductory text revised; interim8690.....................
801.30 (b)(2) and Example 2 revised; interim8690..................
801.31 Example revised; interim8690...............................
801.32 Example revised; interim8690...............................
801.40 Example redesignated as Example 1; (b), (c), (d) and new 
        Example 1 revised; (e) and Example 2 added; interim8690...
801.90 Examples 1 and 2 revised; interim8691......................
802 Authority citation revised8691................................
802.1 Examples 1 through 7, 9 and 10 revised; interim8691.........
802.2 Examples 3, 4, 5, 7, 9, 10 and 12 revised; interim8692......
    (g) revised; interim23565.....................................
802.3 Examples 2 and 3 revised; interim8692.......................
802.4 (a) and (c) Examples 1 and 2 revised; interim8693...........
802.5 Example 2 revised; interim8693..............................
802.6 (b)(2)(ii) revised; interim8693.............................
802.9 Example 1 revised; interim8693..............................
802.20 Removed; interim8693.......................................
802.21 Introductory text and (c) Examples 1 through 5 removed; (a) 
        and (b) revised; (a) Examples 1 through 4 and (b) Examples 
        1 through 4 added; interim8693............................
802.23 Example 2 revised; interim8694.............................
802.31 Example revised; interim8694...............................
802.35 Examples 1 and 2 revised; interim8694......................
802.41 Examples 1 and 2 revised; interim8694......................
802.64 (b)(3), (4) and (c) Example 1 revised; (b)(5) removed; 
        interim8694...............................................
803 Authority citation revised8694................................
803.1 (a) revised; interim8695....................................
803.2 (b) introductory text added; (b)(1) introductory text, (2) 
        and (c) introductory text revised; interim8695............
    (b) introductory text, (1) introductory text and (c) 
introductory text revised; interim23565...........................
803.5 (a)(2) Examples 2 and 3 revised; interim8695................
803.7 Example revised; interim8695................................
803.9 Added; interim8695..........................................
803.10 (b)(1), (2), (c)(1) and second example revised; (c)(1) 
        first example removed; (b)(3) added; interim8696..........

[[Page 645]]

803.20 (b)(2)(i), (ii) and (c)(2) revised; interim8697............
803 Appendix revised; interim8697.................................
    Appendix amended; interim23566................................
    Appendix amended35542.........................................

                                  2002

16 CFR
                                                                   67 FR
                                                                    Page
Chapter I
4.13 (d), (e), (f), (h), (j) and (k) corrected123.................
20 Authority citation revised9922.................................
20.0 Revised9922..................................................
20.1 Revised9922..................................................
20.2 Revised9922..................................................
20.3 Revised9922..................................................
250 Removed9923...................................................
259 Policy statement9924..........................................
303.7 (y) added4903...............................................
    (c) amended70839..............................................
305 Energy efficiency ranges17936, 65310..........................
305.8 (b) revised35008............................................
305.9 (a) revised39271............................................
305.10 (a) revised35008...........................................
305.11 (a)(5)(i)(H)(2) revised47444...............................
305 Appendix B1 revised4173.......................................
    Appendix D5 revised42479......................................
    Appendixes C2 and L revised47445..............................
    Appendix C1 amended; eff. 3-22-0347445........................
    Appendixes H and I amended58328...............................
312.5 (b)(2) amended18821.........................................
314 Added; eff. 5-23-0336493......................................
801.4 (b) Example 5 revised11902..................................
801.14 (b) Example 2 revised11902.................................
801.15 Introductory text, (a)(2), (b), (c) Examples 1, 4, 5, 7, 
        and 8 revised11902........................................
801.90 Example 1 revised11903.....................................
802.2 (g) revised11903............................................
802.6 (b) revised11903............................................
802.8 (a) revised11903............................................
802.21 (b) amended; Example 2 removed; Examples 3 and 4 
        redesignated as Examples 2 and 3; Example 1, new Examples 
        2 and 3 revised11906......................................
802.50 Revised11903...............................................
802.51 Revised11904...............................................
    Example 3 corrected13716......................................
802.52 Example revised11904.......................................

                                  2003

16 CFR
                                                                   68 FR
                                                                    Page
Chapter I
303.7 (m) amended3816.............................................
304 Request for public comment9856................................
305 Energy efficiency ranges38175, 65631..........................
305.8 (b) revised8449.............................................
305.9 (a) revised23586............................................
305.10 (a) revised8449............................................
305.11 (a)(5)(i)(A) revised; (a)(5)(i)(L) added36463..............
    (a)(5)(i)(H)(2) amended; eff. 2-25-0455821....................
305 Appendix L amended36463.......................................
    Appendix L amended; eff. 2-25-0455822.........................
    Appendix C2 revised; Appendixes H, I, and L amended47451......
    Appendix F removed; new Appendixes F1 and F2 added; eff. 2-23-
0465834...........................................................
310 Revised4669...................................................
    Compliance notification16414..................................
310.8 Added45144..................................................
602 Added; interim74469...........................................
801.1 (h) revised2430.............................................
801.21 Introductory text revised2430..............................
803.9 (a) Examples 7 and 8 added; (c) revised2431.................
803.20 (c) revised2431............................................
803 Appendix revised2431..........................................


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